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DOCUMENTS  ILLUSTRATIVE 

OF 

INTERNATIONAL    LAW 


BY 
T.   J.   LAWRENCE,   M.A.,   LL.D. 

MEMBER   OF   THE    INSTITUTE   OF   INTERNATIONAL    LAW 

HONORARY   FELLOW   OF   DOWNING    COLLEGE,    CAMBRIDGE 

RECTOR   OF   UPTON    LOVEL 

READER   IN    INTERNATIONAL   LAW   IN   THE    UNIVERSITY    OF   BRISTOL 

LATE    LECTURER    ON    INTERNATIONAL    LAW   AT  THE    ROYAL    NAVAL  WAR   COLLEGE 

SOMETIME    PROFESSOR  OF  INTERNATIONAL   LAW   IN  THE   UNIVERSITY  OF  CHICAGO 

AUTHOR   OF    "  WAR   AND    NEUTRALITY    IN    THE    FAR   EAST,"    "  THE    PRINCIPLES 

OF   INTERNATIONAL    LAW,"    ETC. 


-O     2)      /V   /v>    O 


D.  C.  HEATH   &  CO.,  PUBLISHERS 

BOSTON  NEW   YORK  CHICAGO 


Copyright,  1914, 
By  D.  C.   Heath  &  Co. 

1H4 


1.43 
^  PREFACE 

'         There  are  in  existence  several  toooks  of  cases,  dealing  with 
the  Law  of  Nations  as  a  whole  or  with  separate  parts  of  it. 
Most  of  them  are  excellent,  and  nothing  was  further  from  my 
thoughts  in  compiling  the  present  work  than  to  enter  into  com- 
petition with  them.    What  I  have  endeavoured  to  do  is  to  pro- 
duce a  book  which  shall  contain,  not  merely  judgments  and 
opinions   given   in   connection   with   disputes   brought   before 
Courts  for  settlement,  but  documents  of  all  kinds  which  bear 
on  the  formation  and  development  of  the  rules  of  International 
Law. 
,       The  student  reads  in  his  text-books  that  certain  authors 
^  who  wrote  some  three  centuries  ago  made  such  a  deep  impres- 
~"  sion  on  the  collective  mind  of  Western  Europe  that  the  principles 
most  of  them  advocated  became  the  foundations  of  a  science 
H  of  international  relations  unlike  anything  that  had  gone  before 
*^  it,  though  borrowing  much  from  previously  existing  theories 
^  and  institutions.    I  have  given  him  extracts  from  some  of  the 
^  most  distinguished  of  these  writers,  that  he  may  see  for  himself 
i  how,  and  against  what,  they  reasoned.    He  also  reads  that  in 
modern  times  states  have  begun  to  settle  for  themselves  by 
common  agreement  what  rules  they  will  obey  in  many  depart- 
ments of  their  mutual  intercourse.     I  have  placed  before  him 
all  the  great  law-making  documents  in  which  these  agreements 
are  recorded.    Further,  he  learns  that  in  the  interval  between 
the  great  Jurists  who  watched  over  and  controlled  the  infancy 
of  International  Law,  and  the  great  Conferences  which  have 
moulded  its  newest  activities,  treaties,  judgments  of  prize-courts 
and  arbitral  tribunals,  state-papers  of  all  kinds,  and  even  the 
opinions  of  private  persons  or  associations  of  persons,  influenced 
its  development,  and  are  likely  still  to  do  so,  some  of  them  in  a 
more  marked  degree  than  before.    I  have  given  him  specimens 
of  all  these  to  study. 

The  proposition   that   students  are  likely  to  derive    much 
'benefit  from  familiarity  with  a  selection  of  such  documents  as 


IV  "PREFACE 

1  have  indicated  is  hardly  Hkely  to  be  controverted.  But  I 
am  acutely  conscious  of  the  difficulty  of  making  a  selection  which 
will  be  generally  satisfactory.  There  can  be  no  doubt  about  the 
inclusion  of  the  Hague  Conventions  and  other  great  law- 
maldng  documents  of  recent  times.  But  when  we  step  beyond 
these,  what  principle  is  to  guide  our  choice?  In  a  case  book  the 
general  opinion  of  the  legal  profession  enables  a  compiler  to 
distinguish  between  the  more  important  and  the  less  important 
judgments.  But  there  is  no  such  consensus  to  appeal  to  in  the 
case  of  ordinary  treaties  and  other  state-papers.  They  form  an 
enormous  literature,  which  no  one  man  can  know,  still  less 
sift  and  weigh.  And  when,  in  addition  to  them,  speeches  of 
statesmen,  writings  of  publicists,  and  transactions  of  societies 
have  to  be  considered,  it  is  clear  that  the  selection  from  this 
mass  of  material  of  enough  to  fill  a  modest  book  of  reference 
must  be  more  a  matter  for  unfettered  individual  judgment  than 
for  regulation  by  standardized  tests.  I  could  but  choose  ac- 
cording to  my  knowledge.  But  my  sense  of  its  limitations  was 
greatly  deepened  as  I  went  on.  Within  its  boundaries  I  have 
taken  by  preference  modern  instances;  and  in  arranging  them  I 
have  followed  the  order  adopted  in  my  Principles  of  International 
Law.  It  was  impossible  to  illustrate  every  part  of  the  subject. 
In  settling  the  points  to  be  elucidated  I  was  guided  largely  by 
my  judgment  as  to  what  were  likely  to  be  most  important  in 
the  immediate  future,  though  doubtless  I  have  laid  stress 
almost  unconsciously  on  the  questions  which  interest  me  most. 
The  selection,  for  instance,  of  what  may  possibly  be  regarded 
as  a  somewhat  disproportionate  number  of  documents  in  con- 
nection with  the  attempts  to  pierce  the  Isthmus  of  Panama, 
the  Monroe  Doctrine,  and  the  position  of  the  United  States 
among  the  American  Republics,  was  due  in  the  first  place  to  a 
conviction,  which  all  share,  of  the  vast  importance  of  the  ques- 
tions raised  by  completion  of  the  Panama  Canal,  but  in  a 
secondary  degree  to  the  intense  interest  I  have  long  taken  in 
the  gradual  evolution  of  something  like  social  organization  in 
the  family  of  nations.  Those  whose  judgments  and  predilec- 
tions are  altogether  different  would  naturally  have  made  a  differ- 


PREFACE  V 

ent  selection.  I  can  only  hope  that  mine  may  meet  the  needs 
of  those  for  whom  it  was  undertaken. 

The  book  is  intended  for  British  and  American  students,  and 
therefore  dwells  most  on  questions  which  concern  them  most 
intimately.  It  is  divided  into  four^^rts.  The  first  deals  with 
the  nature,  origin,  and  developoKt  of  International  Law, 
the  second  with  questions  arising™it  of  the  peaceful  relations 
of  states,  the  third  with  belligerency,  and  the  fourth  ^vith  neu- 
trality. Clearly  it  is  possible  for  a  document  to  cover  matters 
connected  with  more  than  one  of  these  departments.  Thus 
it  comes  about  that  what  appears  in  one  Part  may  often  be 
used  to  elucidate  questions  which  arise  properly  in  connection 
with  another  Part.  A  case  in  point  occurs  in  Part  I  where 
I  reprint  part  of  a  judgment  by  Sir  William  Scott  in  order  to 
point  out  the  way  in  which  Prize  Court  Judges  may,  and  should, 
act  as  exponents  of  International  Law  in  the  process  of  deciding 
the  case  actually  before  them  at  the  time.  But  the  same  ex- 
tract will  serve  equally  well  to  illustrate  the  nature  and  func- 
tions of  Prize  Courts,  a  question  which  falls  properly  into  Part 
III.  Similar  instances  occur  frequently;  and  a  careful  teacher 
will  direct  the  attention  of  his  students  to  them.  It  will  be 
found  that  the  book  can  be  used  with  any  good  modern  treatise 
on  International  Law.  I  have  inserted  elucidatory  notes  at 
the  end  of  many  of  the  documents,  but  they  cannot  be  regarded 
as  substitutes  for  a  systematic  exposition  of  the  subject. 

I  have  laid  a  great  variety  of  sources  under  contribution  for 
my  subject  matter.  The  extracts  from  Machiavelli  are  taken 
from  the  piquant  translation  of  The  Prince,  published  in  1674, 
by  Edward  Dacres.  The  English  version  of  Pufendorff  is  that 
of  Basil  Kennett,  dated  1706,  and  the  quotations  from  Vattell 
come  from  a  translation  of  1793.  Whewell's  translation  of  1853 
has  been  used  in  all  but  one  of  the  extracts  from  Grotius.  Many 
of  the  treaties  and  state-papers  I  have  used  have  been  printed 
and  reprinted  so  often  that  it  is  superfluous  to  say  from  what 
publications  I  took  them.  Where  the  source  is  in  any  way 
special  I  have  acknowledged  it  at  the  end  of  the  document. 
But  it  is  proper  to  add  that  the  pubhcations  of  the  British 


vi  PREFACE 

government  have  been  used  much  more  frequently  than  any 
others.  I  am  indebted  to  the  Controller  of  His  Majesty's 
Stationery  Office  for  })ermission  to  reproduce  them.  To  him, 
and  to  the  Foreign  Office,  I  offer  my  sincere  thanks. 

I  have  also  to  expreAmy  gratitude  to  the  International 
Law  Association  for  allo^j^  me  to  reprint  the  comprehensive 
report  presented  by  thelHCommittee  on  Aviation  in  1913, 
and  to  the  Syndics  of  the  C-ambridge  University  Press  for 
leave  to  use  Doctor  Whewell's  translation  of  the  great  work 
of  Hugo  Grotius,  De  Jure  Belli  ac  Pads.  My  cordial  thanks 
are  hereby  rendered  to  Doctor  James  Brown  Scott,  the  dis- 
tinguished Secretary  of  the  Carnegie  Endowment  for  Interna- 
tional Peace  and  Director  of  its  International  Law  Division, 
for  permission  to  take  a  few  reports  from  his  valuable  col- 
lection of  Cases  on  International  Law,  and  to  reprint  various 
treaties  and  other  documents  from  The  American  Journal  of 
Internation  Law,  of  which  he  is  Editor-in-Chief.  Doctor  John 
Bassett  Moore,  Hamilton  Fish  Professor  of  International 
Law  and  Diplomacy  at  Columbia  University,  New  York,  has 
kindly  allowed  me  to  transfer  to  my  own  pages  several  ex- 
tracts from  his  International  Law  Digest,  and  I  wish  to  express 
to  him  my  gratitude  for  the  permission  to  use  such  a  monu- 
ment of  American  industry  and  scholarship.  In  preparing 
the  present  collection  for  the  press  I  have  received  much  help 
from  Mr.  E.  J.  Passent,  M.A.,  of  Downing  College,  Cam- 
bridge, whose  careful  research  enabled  me  to  find  documents 
I  should  otherwise  have  missed.  I  wish  to  express  my  sense 
of  obligation  to  him  for  his  assistance,  and  to  my  friend. 
Doctor  ('ourtney  Stanhope  Kenny,  Professor  of  English  Law 
in  the  University  of  Cambridge,  for  valuable  advice  given  to 
me  out  of  the  treasures  of  his  wisdom  and  experience 

T.   J.   LAWRENCE. 
Upton  Lovel  Rectory,  England, 
July  28,  1914. 


TABLE   OF  CONTENTS 


PART 


I 


Documents  Illustrating  th^^ature,  Origin,  and 
Development  of  International  Law 

N  umber  page 

1.  Excerpts  from  Nicolo  Machiavelli,  1469-1527 1 

2.  Excerpts  from  Hugo  Grotius,  1583-1645 5 

3.  Excerpts  from  Samuel  Pufendorff,  1632-1694    9 

4.  Excerpts  from  Emerich  de  Vattel,  1714-1767 10 

5.  A  Quasi-Legislature  for  Nations  16 

6.  A  Quasi-State 17 

7.  A  Mode  of  Recognition  —  By  Declaration 29 

8.  Another  Mode  of  Recognition  —  By  Treaty    30 

9:   Conditional  Recognition 32 

10.  Delayed  Recognition 32 

11.  A  Law-Making  Agreement 33 

12.  An  Agreement  that  Purported  to  be  Declaratory  of  Inter- 

national Law 34 

13.  A  Semi-Declaratory  Agreement 35 

14.  An  Agreement  for  a  New  Rule  between  Two  States  only    . .  37 

15.  Prize  Court  Judges  as  Exponents  of  International  Law 37 

16.  Extract  from  a  State  Paper  which  cleared  up  a  Disputed 

Point   38 

17.  Extract  from  a  Domestic  Document  which  influenced  the 

Growth  of  International  Law    39 


PART  II 

Documents  Illustrating  Questions  Connected  with 
THE  Law  of  Peace 

1.  Voluntary  Restrictions  on  State  Action 41 

Great  Britain  and  the  United  States  in  Central  America 

2.  Voluntary  Restrictions  on  State  Action 42 

British  and  German  Spheres  of  Action  in  the  Western  Pacific 


viii  CONTENTS 

NUMBER  PAGE 

3.  Restrictions  on  State  Action  Imposed  by  Superior  Force. . .       43 

Russia  and  Turkey  in  the  Black  Sea. 

4.  Intervention  of  the  United  States  in  Cuba 44 

5.  Intervention  on  the  Ground  of  Humanity 46 

Greece  and  Turkey,  l^S 

6.  Intervention  to  end  iHral  Intervention  46 

The  United  States,  Fra^p  and  Mexico.     Secret  Diplomacy 

7.  Intervention  to  put  dovM  Revolution   47 

The  Holy  Alliance  Treaty  of  1815 

8.  A  Freehand  for  England  in  Egypt  set  off  against  a  Freehand 

for  France  in  Morocco    49 

9.  Dominion  over  the  Air.     Report  of  the  Committee  on  Avia- 

tion of  the  International  Law  Association,  1913    52 

10.  Conditions  of  Occupation 57 

Extract  from  the  General  Act  of  the  West  African  Conference  of 
18S4-1S85 

11.  Cession  by  a  Mixture  of  Forced  Gift  and  Sale 58 

The  Philippine  Islands 

12.  Cession  after  an  Unsuccessful  War 58 

Treaty  of  Peace  between  Turkey  and  the  Balkan  Allies  signed 
at  London,  May  SO,  1913 

13.  A  Modern  Protectorate    60 

Protectorate  Treaty  between  France  and  Morocco,  1912 

14.  Spheres  of  Influence   63 

Anglo-German  Agreement  of  1890 

15.  Assignment  of  Lease  of  Territory 70 

Port  Arthur 

16.  Assignment  of  the  Island  of  Cyprus  to  be  occupied  and  ad- 

ministered by  Great  Britain 70 

17.  Assignment  of  Bosnia  and  Herzegovina,  to  be  occupied  and 

administered  by  Austria 72 

18.  Austria-Hungarian  Imperial  Rescript  assuming  Full  Sover- 

eignty over  Bosnia  and  Herzegovina    72 

19.  Excerpts  from  the  Convention  of  1906  between  Great  Britain 

and  France,  establishing  Joint  Sovereignty  in  the  New 
Helirides    74 

20.  The  Navigation  of  the  Dardanelles  and  the  Bosphorus   ....       77 

Convention  of  1856.     Treaty  of  1871 

21.  Convention  of  1888  for  the  Neutrahzation  of  the  Suez  Canal.      78 

22.  The  Hay-Pauncefote  Treaty  of  1901  for  the  Construction  and 

Neutralization  of  the  Panama  Canal 83 


CONTENTS  ix 

NUMBER  PAGE 

23.  The  Hay-Varilla  Treaty  of  1903  for  the  Construction  and 

Working  of  tlie  Panama  Canal    85 

24.  Extract  from  the  Panama  Canal  Act,  1912,  of  the  Congress 

of  the  United  States   90 

25.  Treaty  of  1914  between  the  United  States  and  Colombia.  .       91 

26.  Award  of  the  Arbitral  Tribunal  in  the  North  Atlantic  Fish- 

eries Dispute  between  Great  Britain  and  the  United  States, 
1910 94 

27.  British  Order  in  Council  of  March  15,  1893,  assuming  Juris- 

diction in  certain  Islands  in  the  Pacific  Ocean 137 

28.  Immunities  of  Public  Armed  Vessels.  Extract  from  the  Judg- 

ment of  Chief  Justice  Marshall  in  the  Case  of  the  Exchange     139 

29.  Excerpts  from  the  General  Act  of  the  Brussels  Conference  of 

1890  for  the  Suppression  of  the  African  Slave  Trade 143 

30.  Bargain  for  the  Substitution  of  Territorial  for  Consular 

Jurisdiction    149 

Madagascar  and  Zanzibar 

31.  A  Modern  Extradition  Treaty    150 

The  United  States  and  France,  1909 

32.  Extract  from  the  Rules  on  Extradition  Voted  by -the  Insti- 

tute of  International  Law  at  Geneva,  1892 157 

33.  The  Concert  of  Europe 158 

Extracts  from  Speeches  by  the  late  Lord  Salisburg  and  Sir  Ed- 
ward Grey 

34.  The  Mom-oe  Doctrine 159 

35.  The  Monroe  Doctrine 161 

Memorandum  of  Mr.  Hay,  United  States  Secretary  of  State,  to 
the  Imperial  German  Embassy,  1901 

36.  President  Roosevelt  on  the  Mom-oe  Doctrine,  1904    162 

37.  Responsibihties  connected  with  the  Monroe  Doctrine    163 

The  United  States  and  the  Republic  of  Santo  Domingo 

38.  Resolution  of  the  Fourth  International  American  Congress, 

estabUshing  the  Pan-American  Union,  1910 170 

39.  Resolution  of  the  Fourth  International  American  Congress 

concerning  the  Pan-American  Railroad,  1910   174 

40.  Protocol  providing  for  a  Conference  between  the  five  Cen- 

tral American  Republics  under  the  Auspices  and  Direction 

of  the  United  States  and  Mexico,  1907   175 


CONTENTS 


PART   III 

Documents  Illustrating  Questions  Connected  with  the 
Laws  of  War 
number  page 

1.  Declaration  conceriiirig  Pacific  Blockade  Voted  by  the  Insti- 

tute of  International  Law  at  Heidelberg,  1887    178 

2.  Declaration  of  War 178 

Hague  Convention  of  1907  with  regard  to  the  opening  of  Hostili- 
ties 

3.  Hague  Convention  of  1907  concerning   the  Treatment   of 

Certain  Enemy  Merchantmen  at  the  Outbreak  of  Hostili- 
ties      180 

4.  Hague  Code  for  War  on  Land,  1907    182 

5.  Geneva  Convention,  1906    195 

6.  Hague  Convention  of  1907  for  the  Adaptation  of  the  Prin- 

ciples of  the  Geneva  Convention  to  Maritime  War 205 

7.  Proclamation  by  the  Commander  of  an  Occupying  Force  in 

the  Boer  War 212 

8.  Japanese  Plan  for  the  Military  Occupation  of  the  Island  of 

Sakhahn,  1905    213 

9.  Hague  Convention  of  1907  with  regard  to  Immunities  from 

Capture  in  Naval  War 217 

10.  Visitation  and  Search 219 

Extract  from  the  Judgment  of  Mr.  Justice  Story  in  the  case  of 
the  Marianna  Flora 

11.  Hague  Convention  of  1907  with  regard  to  the  Estabhsh- 

ment  of  an  International  Prize  Court    221 

12.  Hague  Convention  of  1907  with  regard  to  the  Conversion 

of  Merchantmen  into  Warships 237 

13.  Hague  Convention  of  1907  with  regard  to  the  Use  of  Auto- 

matic Contact  Mines 238 

14.  Hague  Convention  of  1907  with  regard  to  Bombardments 

by  Naval  Forces  in  Time  of  War   240 

15.  Hague  Declaration  of  1907  prohibiting  the  Discharge   of 

Projectiles  and  Explosives  from  Balloons 242 

16.  Declaration  of  St.  Petersburg,  1868 244 

17.  Hague  Convention  of  1907  for  the  Pacific  Settlement  of 

International  Disputes 245 


CONTENTS  xi 

NUMBER  PAGE 

18.  Hague  Convention  of  1907  for  the  Limitation  of  the  Employ- 

ment of  Force  for  the  Recovery  of  Contract  Debts 269 

19.  Draft  of  Hague  Convention  of  1907  concerning  the  Creation 

of  a  Judicial  Arbitration  Court 270 


PART  IV 

Documents  Illustrating  Questions  Connected  with 
THE  Law  of  Neutrality 

1.  United  States  Foreign  Enlistment  Act,  1818    280 

2.  British  Foreign  EnUstment  Act,  1870   285 

3.  British  Proclamation  of  NeutraUty  in  the  War  of  1904-5 

between  Russia  and  Japan 300 

4.  British  Rules  of  Neutrahty  promulgated  along  with   the 

Proclamation  of  NeutraUty  in  the  Russo-Japanese  War 

of  1904-5 303 

5.  Hague  Convention  of  1907  concerning  the  Rights  and  Duties 

of  Neutral  Powers  and  Persons  in  War  on  Land 306 

6.  Hague  Convention  of  1907  concerning  the  Rights  and  Duties 

of  Neutral  Powers  in  Maritime  War    310 

7.  Rules  with  regard  to  Submarine  Cables  in  Time  of  War, 

voted  by  The  Institute  of  International  Law  at  Brussels 

in  1902 316 

8.  Rule  of  War  of  1756 316 

9.  Judgment  of  the  Supreme  Court  of  the  United  States  in  the 

Case  of  the  Olinde  Rodrigues 318 

What  constitutes  an  Effective  Blockade 

10.  Judgment  of  Sir  WiUiam  Scott  in  the  Case  of  the  Jonge  Mar- 

garetha 329 

The  Doctrine  of  Conditional  Contraband  and  its  Application 
to  Provisions 

11.  Declaration  of  London 333 


DOCUMEJS^TS     ILLUSTRATIVE 
OF   II^TERNATIOXAL   LAW 

PART    I 

DOCUMENTS     ILLUSTRATING     THE    NATURE, 

ORIGIN,   AND   DEVELOPMENT   OF 

INTERNATIONAL   LAW 

1.   Excerpts  from  Nicolo  Machiavelli,  1469-1527 

Calculated  Cruelty 

From  whence  it  is  to  be  observed,  that  he  who  usurps  the 
government  of  any  State  is  to  execute  and  put  in  practice  all 
the  cruelties  which  he  thinks  material  at  once,  that  he  may  have 
no  occasion  to  renew  them  often,  but  that  by  his  discontinuance 
he  may  mollify  the  people,  and  by  his  benefits  bring  them  over 
to  his  side.  He  who  does  otherwise,  whether  for  fear  or  ill 
counsel,  is  obliged  to  be  always  ready  with  his  knife  in  his 
hand;  for  he  can  never  repose  any  confidence  in  his  subjects, 
whilst  they,  by  reason  of  his  fresh  and  continued  inhumanities, 
cannot  be  secure  against  him.  So  then  injuries  are  to  be  com- 
mitted all  at  once,  that  the  last  being  the  less,  the  distaste  may 
be  likewise  the  less;  but  benefits  should  be  distilled  by  drops, 
that  the  relish  may  be  greater.  —  {The  Prince,  ch.  viii.) 

War 

A  Prince,  then,  is  to  have  no  other  design,  nor  thought,  nor 
study  but  war  and  the  arts  and  disciplines  of  it;  for,  indeed, 
that  is  the  only  profession  worthy  of  a  prince,  and  is  of  so  much 


2  DOCUMENTS  ON  INTERNATIONAL  LAW 

importance  that  it  not  only  preserves  those  who  are  born  princes 
in  their  patrimonies,  but  advances  men  of  private  condition  to 
that  honourable  degree.  —  {The  Prince,  ch.  xiv.) 

Opportune  Lack  of  Moral  Principle 

A  tender  man,  and  one  that  desires  to  be  honest  in  everything, 
must  needs  run  a  great  hazard  among  so  many  of  a  contrary 
principle.  Wherefore  it  is  necessary  for  a  prince  who  is  willing 
to  subsist  to  harden  himself,  and  learn  to  be  good  or  otherwise 
according  to  the  exigence  of  his  affairs.  .  .  .  No  man,  I  am 
sure,  will  deny  but  that  it  would  be  an  admirable  thing  and 
highly  to  be  commended  to  have  a  prince  endued  with  all  good 
qualities;  but  because  it  is  impossible  to  have,  much  less  to 
exercise,  them  all  by  reason  of  the  frailty  and  crossness  of  our 
nature,  it  is  convenient  that  he  be  so  well  instructed  as  to  know 
how  to  avoid  the  scandal  of  those  vices  which  may  deprive  him 
of  his  state,  and  be  very  cautious  of  the  rest,  though  their  con- 
sequence be  not  so  pernicious,  but  where  they  are  unavoidable 
he  need  trouble  himself  the  less.  Again,  he  is  not  to  concern 
himself  if  run  under  the  infamy  of  those  vices  without  which 
his  dominion  was  not  to  be  preserved;  for  if  we  consider  things 
impartially  we  shall  find  some  things  in  appearance  are  virtu- 
ous, and  yet,  if  pursued,  would  bring  certain  destruction;  and 
others,  on  the  contrary,  that  are  seemingly  bad,  which,  if  fol- 
lowed by  a  prince,  procure  his  peace  and  security.  —  {The 
Prince,  ch.  xv.) 

The  Value  of  Bloodshed  and  Fear 

I  say  every  prince  is  to  desire  to  be  esteemed  rather  merciful 
than  cruel,  but  with  great  caution  that  his  mercy  be  not  abused; 
Caesar  Borgia  was  counted  cruel,  yet  that  cruelty  reduced 
Romagna,  united  it,  settled  it  in  peace,  and  rendered  it  faith- 
ful :  so  that  if  well  considered,  he  will  appear  much  more  merci- 
ful than  the  Florentines,  who  rather  than  be  thought  cruel 
suffered  Pistoia  to  be  destroyed.  A  prince,  therefore,  is  not 
to  regard  the  scandal  of  being  cruel,  if  thereby  he  keeps  his 
subjects  in  their  allegiance  and  united.  .  .  .  Nevertheless,  he 


NATURE,  ORIGIN,  AND  DEVELOPMENT  3 

is  not  to  be  too  credulous  of  reports,  too  hasty  in  his  motions, 
nor  create  fears  and  jealousies  to  himself,  but  so  to  temper  his 
administrations  with  prudence  and  humanity  that  neither  too 
much  confidence  may  make  him  careless,  nor  too  much  diffi- 
dence intolerable.  And  from  hence  arises  a  new  question, 
Whether  it  be  better  to  be  beloved  than  feared,  or  feared  than 
beloved?  It  is  answered  both  would  be  convenient,  but  be- 
cause that  is  hard  to  attain,  it  is  better  and  more  secure,  if  one 
must  be  wanting,  to  be  feared  than  beloved.  ...  I  conclude, 
therefore,  according  to  what  I  have  said  about  being  feared  or 
beloved,  that  forasmuch  as  men  do  love  at  their  own  discretion, 
but  fear  at  their  prince's,  a  wise  prince  is  obliged  to  lay  founda- 
tion upon  that  which  is  in  his  power,  not  that  which  depends 
on  other  people,  but,  as  I  said  before,  with  great  caution  that 
he  does  not  make  himself  odious.  —  (The  Prince,  ch.  xvii.) 

The  Use  of  Dissimulation 

How  honourable  it  is  for  a  prince  to  keep  his  word,  and  act 
rather  with  integrity  than  collusion,  I  suppose  everybody  under- 
stands: nevertheless,  experience  has  shown  in  our  times  that 
those  princes  who  have  not  pinned  themselves  up  to  that  punc- 
tuality and  preciseness  have  done  great  things,  and  by  their 
cunning  and  subtilty  not  only  circumvented,  and  darted  the 
brains  of  those  with  whom  they  had  to  deal,  but  have  overcome 
and  been  too  hard  for  those  who  have  been  so  superstitiously 
exact.  For  further  explanation  you  must  understand  there  are 
two  ways  of  contending,  by  law  and  by  force :  the  first  is  proper 
to  men;  the  second  to  beasts;  but  because  many  times  the  first 
is  insufficient,  recourse  must  be  had  to  the  second.  It  belongs, 
therefore,  to  a  prince  to  understand  both,  when  to  make  use  of 
the  rational  and  when  of  the  brutal  way.  ...  A  prince,  there- 
fore, who  is  wise  and  prudent,  cannot  or  ought  not  to  keep  his 
parole,  when  the  keeping  of  it  is  to  his  prejudice,  and  the  causes 
for  which  he  promised  removed.  Were  men  all  good  this 
doctrine  was  not  to  be  taught,  but  because  they  are  wicked  and 
not  likely  to  be  punctual  with  you,  you  are  not  obliged  to  any 
such  strictness  with  them;   nor  was  there  ever  any  prince  that 


4  DOCUMENTS  ON  INTERNATIONAL  LAW 

wanted  lawful  pretence  to  justify  his  breach  of  promise.  I 
might  instance  in  many  modern  examples,  and  show  how  many 
confederations,  and  peaces,  and  promises  have  been  broken  by 
the  infideUty  of  princes,  and  how  he  that  best  personated  the 
fox  had  the  better  success.  Nevertheless,  it  is  of  great  conse- 
quence to  disguise  your  inclination,  and  to  play  the  hypocrite 
well;  and  men  are  so  simple  in  their  temper  and  so  submissive 
to  their  present  necessities,  that  he  that  is  neat  and  cleanly  in 
his  collusions  shall  never  want  people  to  practise  them  upon. 
I  cannot  forbear  one  example  which  is  still  fresh  in  our  memory. 
Alexander  VI  never  did,  nor  thought  of,  anything  but  cheat- 
ing, and  never  wanted  matter  to  work  upon;  and  though  no 
man  promised  a  thing  with  greater  asseveration,  nor  confirmed 
it  with  more  oaths  and  imprecations,  and  observed  them  less, 
yet  understanding  the  world  well  he  never  miscarried. 

A  prince,  therefore,  is  not  obliged  to  have  all  the  fore-men- 
tioned good  qualities  in  reality,  but  it  is  necessary  he  have  them 
in  appearance;  nay,  I  will  be  bold  to  affirm  that,  having  them 
actually,  and  employing  them  upon  all  occasions,  they  are 
extremely  prejudicial,  whereas,  having  them  only  in  appearance, 
they  turn  to  better  account;  it  is  honourable  to  seem  mild,  and 
merciful,  and  courteous,  and  religious,  and  sincere,  and  indeed 
to  be  so,  provided  your  mind  be  so  rectified  and  prepared  that 
you  can  act  quite  contrary  upon  occasion.  And  this  must  be 
premised,  that  a  prince,  especially  if  come  but  lately  to  the 
throne,  cannot  observe  all  those  things  exactly  which  make 
men  be  esteemed  virtuous,  being  oftentimes  necessitated,  for  the 
preservation  of  his  State,  to  do  things  inhuman,  uncharitable, 
and  irreligious;  and,  therefore,  it  is  convenient  his  mind  be  at 
his  command,  and  flexiljle  to  all  the  puffs  and  variations  of 
fortune;  not  forbearing  to  be  good  whilst  it  is  in  his  choice,  but 
knowing  how  to  be  evil  when  there  is  a  necessity.  A  prince, 
then,  is  to  have  particular  care  that  nothing  falls  from  his  mouth 
but  what  is  full  of  the  five  qualities  aforesaid,  and  that  to  see 
and  to  hear  him  he  appears  all  goodness,  integrity,  humanity, 
and  religion,  which  last  he  ought  to  pretend  to  more  than  or- 
dinarily, because  more  men  do  judge  by  the  eye  than  by  the 


NATURE,  ORIGIN,  AND  DEVELOPMENT  5 

touch;  for  everybody  sees  but  few  understand;  everybody  sees 
how  you  appear,  but  few  know  what  in  reaUty  you  are,  and  those 
few  dare  not  oppose  the  opinion  of  the  multitude,  who  have  the 
majesty  of  their  prince  to  defend  them;  and  in  the  actions  of 
all  men,  especially  princes,  where  no  man  has  power  to  judge, 
everyone  looks  to  the  end.  Let  a  prince,  therefore,  do  what  he 
can  to  preserve  his  life,  and  continue  his  supremacy,  the  means 
which  he  uses  shall  be  thought  honourable,  and  be  commended 
by  everybody;  because  the  people  are  always  taken  with  the 
appearance  and  event  of  things  and  the  greatest  part  of  the 
world  consists  of  the  people;  those  few  who  are  -wise  taking 
place  when  the  multitude  has  nothing  else  to  rely  upon.  There 
is  a  prince  at  this  time  in  being  (but  his  name  I  shall  conceal) 
who  has  nothing  in  his  mouth  but  fidelity  and  peace;  and  yet 
had  he  exercised  either  the  one  or  the  other,  they  had  robbed 
him  before  this  both  of  his  power  and  reputation.  —  {The 
Prince,  ch.  xviii.) 

2.   Excerpts  from  Hugo  Grotius,  1583-1645 
The  Reality  of  International  Law 

The  Civil  Law,  both  that  of  Rome,  and  that  of  each  nation 
in  particular,  has  been  treated  of,  with  a  view  either  to  illustrate 
it  or  to  present  it  in  a  compendious  form,  by  many.  But  In- 
ternational Law,  that  which  regards  the  mutual  relations  of 
several  Peoples,  or  Rulers  of  Peoples,  whether  it  proceed  from 
nature,  or  be  instituted  by  divine  command,  or  introduced  by 
custom  and  tacit  compact,  has  been  touched  on  by  few,  and 
has  been  by  no  one  treated  as  a  whole  in  an  orderly  manner. 
And  yet  that  this  be  done,  concerns  the  human  race.  .  .  . 

And  such  a  work  is  the  more  necessary  on  this  account;  that 
there  are  not  wanting  persons  in  our  oym  time,  and  there  have 
been  also  in  former  times  persons,  who  have  despised  what  has 
been  done  in  this  province  of  jurisprudence,  so  far  as  to  hold  that 
no  such  thing  existed,  except  as  a  mere  name.  Every  one  can 
quote  the  saying  of  Euphemius  in  Thucydides;  — that  for  a 
king  or  a  city  which  has  an  empire  to  maintain,  nothing  is 


6  DOCUMENTS  ON  INTERNATIONAL  LAW 

unjust  which  is  useful:  and  to  the  same  effect  is  the  saying, 
that  for  those  who  have  supreme  power,  the  equity  is  where  the 
strength  is:  and  that  other,  that  state  affairs  cannot  be  carried 
on  without  doing  some  wTong.  —  {De  Jure  Belli  ac  Pads, 
Prolegomena.) 

The  Need  of  International  Law 

I,  for  the  reasons  which  I  have  stated,  holding  it  to  be  most 
certain  that  there  is  among  nations  a  common  law  of  Rights 
which  is  of  force  with  regard  to  war,  and  in  war,  saw  many  and 
grave  causes  why  I  should  write  a  work  on  that  subject.  For  I 
saw  prevailing  throughout  the  Christian  world  a  license  in 
making  war  of  which  even  barbarous  nations  would  have  been 
ashamed;  recourse  l^eing  had  to  arms  for  slight  reasons  or  no 
reason;  and  when  arms  were  once  taken  up,  all  reverence  for 
divine  and  human  law  was  thrown  away,  just  as  if  men  were 
thenceforth  authorized  to  commit  all  crimes  without  restraint. 
—  (De  Jure  Belli  ac  Pads,  Prolegomena.) 

An  Attempt  to  set  up  a  Law  of  Nature  or 
Natural  Law 

It  remains  now  that  I  briefly  explain  with  what  aids,  and  with 
what  care,  I  undertook  this  work.  In  the  first  place,  it  was  my 
object  to  refer  the  truth  of  the  things  which  belong  to  Natural 
Law  to  some  notions,  so  certain,  that  no  one  can  deny  them, 
without  doing  violence  to  his  own  nature.  For  the  principles 
of  such  Natural  Law,  if  you  attend  to  them  rightly,  are  of  them- 
selves patent  and  evident,  almost  in  the  same  way  as  things 
which  are  perceived  by  the  external  senses;  which  do  not  de- 
ceive us,  if  the  organs  are  rightly  disposed,  and  if  other  things 
necessary  are  not  wanting.  Therefore  Euripides  in  his  PhoenissoB 
makes  Polynices,  whose  cause  he  would  have  to  be  represented 
manifestly  just,  express  himself  thus:  — 

I  speak  not  things  hard  to  be  understood, 
But  such  as,  founded  on  the  rules  of  good 
And  just,  are  known  alike  to  learn'd  and  rude. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  7 

And  he  immediately  adds  the  judgment  of  the  chorus,  (which 
consisted  of  women,  and  these  too  barbarians,)  approving 
what  he  said. 

In  order  to  give  proofs  on  questions  respecting  this  Natural 
Law,  I  have  made  use  of  the  testimonies  of  philosophers,  his- 
torians, poets,  and  finally  orators.  Not  that  I  regard  these 
as  judges  from  whose  decision  there  is  no  appeal:  for  they  are 
warped  by  their  party,  their  argument,  their  cause:  but  I 
quote  them  as  witnesses  whose  conspiring  testimony,  pro- 
ceeding from  innumerable  different  times  and  places,  must  be 
referred  to  some  universal  cause;  which,  in  the  questions  with 
which  we  are  here  concerned,  can  be  no  other  than  a  right  deduc- 
tion proceeding  from  the  principles  of  reason,  or  some  common 
consent.  The  former  cause  of  agreement  points  to  the  Law  of 
Nature;  the  latter,  to  the  Law  of  Nations:  though  the  differ- 
ence of  these  two  is  not  to  be  collected  from  the  testimonies 
themselves,  (for  writers  everywhere  confound  the  Law  of  Nature 
and  the  Law  of  Nations,)  but  from  the  quahty  of  the  matter. 
For  what  cannot  be  deduced  from  certain  principles  by  solid 
reasoning,  and  yet  is  seen  and  observed  everywhere,  must  have 
its  origin  from  the  will  and  consent  of  all.  —  {De  Jure  Belli  ac 
Pads,  Prolegomena.) 

An  Account  of  the  So-called  Natural  Law 

Natural  Law  is  the  Dictate  of  Right  Reason,  indicating  that 
any  act,  from  its  agreement  or  disagreement  wdth  the  rational 
nature  has  in  it  a  moral  turpitude  or  a  moral  necessity;  and 
consequently  that  such  act  is  forbidden  or  commanded  by  God, 
the  author  of  nature. 

Acts  concerning  which  there  is  such  a  Dictate,  are  obliga- 
tory, or  are  unlawful,  in  themselves,  and  are  therefore  under- 
stood as  necessarily  commanded  or  forbidden  by  God;  and  in 
this  character,  Natural  Law  differs,  not  only  from  Human  Law, 
but  from  Positive  Divine  Law,  which  does  not  forbid  or 
command  acts  which,  in  themselves  and  by  their  own  na- 
ture, are  either  obligatory  or  unlawful;    but,  by  forbidding 


8  DOCUMENTS  ON  INTERNATIONAL  LAW 

them  makes  them  unlawful,  by  commanding  them  makes  them 
obligatory.  .  .  . 

Natural  Law  is  so  immutable  that  it  cannot  be  changed  by 
God  himself.  For  though  the  power  of  God  be  immense,  there 
are  some  things  to  which  it  does  not  extend :  because  if  we  speak 
of  those  things  being  done,  the  words  are  mere  words,  and  have 
no  meaning,  being  self-contradictory.  Thus  God  himself  can- 
not make  twice  two  not  be  four;  and  in  like  manner,  He 
cannot  make  that  which  is  intrinsically  bad,  not  be  bad.  For 
as  the  essence  of  things,  when  they  exist,  and  by  which  they 
exist,  does  not  depend  on  anything  else,  so  is  it  with  the 
properties  which  follow  that  essence:  and  such  a  property  is 
the  baseness  of  certain  actions,  when  compared  with  the 
nature  of  rational  beings.  And  God  himself  allows  himself 
to  be  judged  of  by  this  rule.  .  .  . 

That  there  is  such  a  thing  as  Natural  Law,  is  commonly 
proved  both  a  priori  and  a  posteriori;  the  former  the  more 
subtle,  the  latter,  the  more  popular  proof.  It  is  proved  a  priori 
by  shewing  the  agreement  or  disagreement  of  anything  with 
the  rational  and  social  nature  of  man.  It  is  proved  a  posteriori 
when  by  certain  or  very  probable  accounts  we  find  anything 
accepted  as  Natural  Law  among  all  nations,  or  at  least  the  more 
civilized.  For  a  universal  effect  requires  a  universal  cause: 
now  such  a  universal  belief  can  hardly  have  any  cause  except 
the  common  sense  of  mankind.  —  {De  Jure  Belli  ac  Pads, 
Bk.  I,  ch.  i,  §§  10,  12.) 

An  Account  of  Positive  Law 

Another  species  of  Law  is  Positive  (Instituted  or  Voluntary) 
Law,  which  derives  its  origin  from  will  and  is  either  human  or 
Divine.  Human  Positive  Law  includes  Civil  Law,  which  pro- 
ceeds from  the  power  of  the  state,  the  Law  of  Nations,  which 
receives  its  binding  force  from  the  will  of  all  nations  or  of  many, 
and  Law  which  does  not  emanate  from  the  power  of  the  state 
though  subject  to  it,  such  as  the  commands  of  a  father  or  a 
master. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  9 

Divine  Positive  (Instituted  or  Voluntary)  Law  originates 
from  the  Divine  will  in  such  a  way  that  God  does  not  will  it 
because  it  is  just,  but  it  is  just  because  God  wills  it.  This  Law 
is  given  either  to  the  whole  human  race  or  to  one  people.  To 
the  whole  human  race  we  find  Law  was  thrice  given  by  God  — 
at  the  creation,  after  the  flood,  and  through  Christ.  These 
three  Laws  bind  all  men  as  knowledge  of  them  is  acquired.  To 
the  Hebrew  people  God  gave  a  Law  peculiar  to  themselves, 
which  therefore  does  not  bind  other  peoples.  —  (De  Jure  Belli 
ac  Pads,  Bk.  I,  ch.  i,  §§  13-16,  condensed  and  to  some  extent 
paraphrased.) 

3.   Excerpts  from  Samuel  Pufendorff,  1632-1694 

Natural  Law  and  its  Claims 

It  follows  that  we  make  enquiry  into  that  most  general  and 
universal  rule  of  human  action,  to  which  every  man  is  obliged 
to  conform,  as  he  is  a  reasonable  creature.  To  this  rule  custom 
hath  given  the  name  of  Natural  Law,  and  we  may  call  it  like- 
wise the  Law  Universal  or  Perpetual,  the  former  in  regard  that 
it  binds  the  whole  body  of  the  human  race,  the  latter  because 
it  is  not  subject  to  change,  which  is  the  disadvantage  of  Posi- 
tive Laws.  —  (De  Jure  Naturce  et  Gentium,  Bk.  II,  ch.  iii,  §  1.) 

Natural  Law  Sufficient  for  Nations:   No  Positive 
Law  Needed  by  Them 

There  is  still  one  question  behind  which  requires  our  deter- 
mination, whether  or  no  there  be  any  such  thing  as  a  particular 
and  positive  Law  of  Nations,  contradistinct  to  the  Law  of 
Nature.  Learned  men  are  not  come  to  any  good  agreement  on 
this  point.  Many  assert  the  Law  of  Nature  and  the  Law  of 
Nations  to  be  the  very  same  thing,  differing  no  otherwise  than 
in  external  denomination.  Thus  Hobbes  divides  Natural  Law 
into  the  Natural  Law  of  Men  and  the  Natural  Law  of  States, 
commonly  called  the  Law  of  Nations.  He  observes  that  "the 
precepts  of  both  are  the  same;  but  forasmuch  as  States  when 
they  are  once  instituted  assume  the  personal  properties  of  men, 


10  DOCUMENTS  ON  INTERNATIONAL  LAW 

hence  it  comes  to  pass  that  what,  speaking  of  the  duty  of  par- 
ticular men,  we  call  the  Law  of  Nature,  the  same  we  term  the 
Law  of  Nations,  when  we  apply  it  to  whole  States,  Nations,  or 
Peoples."  This  opinion  we  for  our  part  readily  subscribe  to. 
Nor  do  we  conceive  that  there  is  any  other  voluntary  or 
Positive  Law  of  Nations  properly  invested  with  a  true  and  legal 
force  and  obliging  as  the  ordinance  of  a  superior  power.  — 
{De  Jure  NaturoB  et  Gentium,  Bk.  II,  ch.  iii,  §  23.) 

4.   Excerpts  from  Emerich  de  Vattel,  1714-1767 

The  Natural  or  Necessary  Law  of  Nations 

Nations  being  composed  of  men  naturally  free  and  inde- 
pendent, and  who,  before  the  establishment  of  civil  societies, 
lived  together  in  the  state  of  nature,  nations,  or  sovereign  states, 
are  to  be  considered  as  so  many  free  persons  living  together  in 
the  state  of  nature. 

It  is  evident  from  the  Law  of  Nature,  that  all  men  being 
naturally  free  and  independent,  they  cannot  lose  these  blessings 
without  their  own  consent.  Citizens  cannot  enjoy  them  fully 
and  absolutely  in  any  state,  because  they  have  surrendered  a 
part  of  these  privileges  to  the  sovereign.  But  the  body  of  the 
nation,  the  state,  remains  absolutely  free  and  independent  with 
respect  to  all  men,  or  to  foreign  nations,  while  it  does  not  vol- 
untarily submit  to  them. 

Men  being  subject  to  the  Laws  of  Nature,  and  their  union 
in  civil  society  not  being  sufficient  to  free  them  from  the  obliga- 
tion of  observing  these  laws,  since  by  this  union  they  do  not 
cease  to  be  men;  the  entire  nation,  whose  common  will  is  only 
the  result  of  the  united  wills  of  the  citizens,  remains  subject  to 
the  Laws  of  Nature,  and  is  obliged  to  respect  them  in  all  its 
proceedings.  And  since  the  law  arises  from  the  obligation,  the 
nation  has  also  the  same  laws  that  nature  has  given  to  men,  for 
the  performance  of  their  duty. 

We  must  then  apply  to  nations  the  rules  of  the  Law  of  Nature 
in  order  to  discover  what  are  their  obligations,  and  what  are 
their  laws;    consequently  the  Law  of  Nations  is  originally  no 


NATURE,  ORIGIN,  AND  DEVELOPMENT  11 

more  than  the  Law  of  Nature  apphcd  to  nations.  But  as  the 
appUcation  of  a  rule  cannot  be  just  and  reasonable,  if  it  be  not 
made  in  a  manner  suitable  to  the  subject;  we  are  not  to  believe 
that  the  Law  of  Nations  is  precisely,  and  in  every  case,  the  same 
as  the  Law  of  Nature,  the  subjects  of  them  only  excepted;  so 
that  we  need  only  substitute  nations  for  individuals.  A  state 
of  civil  society  is  a  subject  very  different  from  an  individual  of 
a  human  race;  whence,  in  many  cases,  there  follow,  in  virtue 
of  the  Law  of  Nations  themselves,  very  different  obligations  and 
rights;  for  the  same  general  rule  applied  to  two  subjects  can- 
not produce  the  same  decisions,  when  the  subjects  are  different; 
since  a  particular  rule  that  is  very  just  with  respect  to  one  sub- 
ject, is  not  applicable  to  another  subject  of  a  very  different  na- 
ture. There  are  then  many  cases  in  which  the  Law  of  Nature 
does  not  determine  between  state  and  state,  as  it  would  between 
man  and  man.  We  must  therefore  know  how  to  accommodate 
the  application  of  it  to  different  subjects;  and  it  is  the  art  of 
applying  it  with  a  justness  founded  on  right  reason,  that  renders 
the  Law  of  Nations  a  distinct  science. 

We  call  that  the  Necessary  Law  of  Nations  that  consists  in 
the  application  of  the  Law  of  Nature  to  nations.  It  is  necessary, 
because  nations  are  absolutely  obliged  to  observe  it.  This  Law 
contains  the  precepts,  prescribed  by  the  Law  of  Nature  to 
states,  to  whom  that  Law  is  not  less  obligatory  than  to  indi- 
viduals; because  states  are  composed  of  men,  their  resolutions 
are  taken  by  men,  and  the  Law  of  Nature  is  obligatory  to  all 
men,  under  whatever  relation  they  act.  This  is  the  Law  which 
Grotius,  and  those  who  follow  him,  call  the  Internal  Law  of 
Nations,  on  account  of  its  being  obligatory  to  nations  in  point 
of  conscience.    Several  term  it  the  Natural  Law  of  Nations. 

Since  then  the  Necessary  Law  of  Nations  consists  in  the 
application  of  the  Law  of  Nature  to  states,  and  is  immutable, 
as  being  founded  on  the  nature  of  things,  and  in  particular  on 
the  nature  of  man;  it  follows,  that  the  Necessary  Law  of 
Nations  is  immutable. 

Whence,  as  this  Law  is  immutable,  and  the  obligations  that 
arise  from  it  necessary  and  indispensible ;   nations  can  neither 


12  DOCUMENTS  ON  INTERNATIONAL  LAW 

make  any  changes  in  it  by  their  conventions,  dispense  ^vith  it 
themselves,  nor  reciprocally,  with  respect  to  each  other. 

This  is  the  principle  by  which  we  may  distinguish  lawful  con- 
ventions or  treaties,  from  those  that  are  not  lawful;  and  in- 
nocent and  rational  customs  from  those  that  are  unjust  and 
censurable. 

There  are  things  just,  and  permitted  by  the  Necessary  Law 
of  Nations,  which  states  may  agree  to  establish  between  each 
other,  and  which  they  may  consecrate  and  strengthen  by  man- 
ners and  customs.  There  are  also  those  that  are  indifferent, 
which  different  states  may  agree  to  establish  at  pleasure  by 
treaties,  or  introduce  such  custom  or  such  practice  as  they  shall 
think  proper.  But  all  the  treaties  and  all  the  customs  contrary 
to  what  the  Necessary  Law  of  Nations  prescribes,  or  that  are 
such  as  it  forbids,  are  unlawful.  We  shall  hereafter  find  that 
they  are  not  always  such  as  are  agreeable  to  the  Internal  Law 
of  Nature  or  of  conscience,  and  that  for  reasons  which  shall  be 
given  in  their  proper  place,  these  conventions,  or  these  treaties, 
are  only  valid  by  the  external  law.  Nations  being  free  and 
independent,  though  the  actions  of  one  of  them  are  illegal  and 
are  condemned  by  the  Law  of  conscience,  the  others  are  obliged 
to  bear  with  them,  when  those  actions  do  not  injure  their  perfect 
rights.  The  liberty  of  one  nation  will  not  remain  entire,  if  the 
others  arrogate  to  themselves  an  inspection  into  the  rules  of  its 
conduct.  For  this  must  be  contrary  to  the  Law  of  Nature, 
which  declares  every  nation  free  and  independent  of  others.  — 
{Droit  des  Gens,  Preliminaires.) 

The  Positive  Law  of  Nations 

Nations  being  free,  independent,  and  equal,  and  having  a 
right  to  judge  according  to  the  dictates  of  conscience,  of  what 
is  to  be  done  in  order  to  fulfil  its  duties;  the  effect  of  all  this  is, 
the  producing,  at  least  externally,  and  among  men,  a  perfect 
equality  of  rights  between  nations,  in  the  administration  of 
their  affairs,  and  the  pursuit  of  their  pretensions,  without 
regard  to  the  intrinsic  justice  of  their  conduct,  of  which  others 


NATURE,  ORIGIN,  AND  DEVELOPMENT  13 

have  no  right  to  inform  a  definitive  judgment;  so  that 
what  is  permitted  in  one,  is  also  permitted  in  the  other,  and 
they  ought  to  be  considered  in  human  society  as  having  an 
equal  right. 

Every  one  in  fact  pretends  to  have  justice  on  his  side  in  the 
differences  that  may  arise,  and  neither  one  nor  the  other  ought 
to  interest  itself  in  forming  a  judgment  of  the  disputes  of  other 
nations.  The  nation  that  has  acted  wrong,  has  offended  against 
its  conscience;  but  as  it  may  do  whatever  it  has  a  right  to  per- 
form, it  cannot  be  accused  of  violating  the  laws  of  society. 

It  is  therefore  necessary,  on  many  occasions  that  nations 
should  suffer  certain  things  to  be  done,  that  are  very  unjust  and 
blameable  in  their  own  nature,  because  they  cannot  oppose  it 
by  open  force,  without  violating  the  liberty  of  some  particular 
state,  and  destroying  the  foundation  of  natural  society.  And 
since  they  are  obliged  to  cultivate  that  society,  it  is  rightly 
presumed,  that  all  nations  have  consented  to  the  principle  we 
have  just  established.  The  rules  that  flow  from  this  principle, 
form  what  Wolfe  calls  the  Voluntary  Law  of  Nations;  and 
nothing  prevents  our  using  the  same  term,  though  we  have 
imagined  that  we  ought  to  deviate  from  that  great  man  in  our 
manner  of  establishing  the  foundation  of  those  laws. 

The  laws  of  natural  society  are  of  such  importance  to  the 
safety  of  all  states,  that  if  they  accustom  themselves  to  trample 
them  under  their  feet,  no  people  can  flatter  themselves  with  the 
hopes  of  self-preservation,  and  of  enjoying  tranquillity  at  home, 
whatever  wise,  just,  and  moderate  measures  they  may  pursue. 
Now  all  men  and  all  states  have  a  perfect  right  to  those  things 
that  are  necessary  for  their  preservation;  since  this  right  is 
equivalent  to  an  indispensible  obligation.  All  nations  have 
then  a  right  to  repel  by  force  what  openly  violates  the  laws  of 
the  society  which  nature  has  established  among  them,  or  that 
directly  attacks  the  welfare  and  safety  of  that  society. 

But  care  must  be  taken  not  to  extend  this  law  to  the  preju- 
dice of  the  liberty  of  nations.  All  are  free  and  independent, 
but  obliged  to  preserve  the  laws  of  society,  which  nature  has 
estabUshed  among  them;  and  so  far  obliged,  that  others  have  a 


14  DOCUMENTS  ON  INTERNATIONAL  LAW 

right  to  repress  that  which  violates  these  laws;  all  together 
have  not  therefore  any  authority  over  the  conduct  of  any  one, 
farther  than  the  interest  of  the  natural  society  is  concerned. 
The  general  and  common  Law  of  Nations,  with  respect  to  the 
conduct  of  all  sovereign  states,  ought  to  be  measured  by  the 
end  of  the  association  that  subsists  between  them. 

The  several  engagements  into  which  nations  may  enter,  pro- 
duce a  new  kind  of  the  Law  of  Nations,  called  conventional,  or 
of  treaties.  As  it  is  evident  that  a  treaty  binds  only  the  con- 
tracting parties,  the  Conventional  Law  of  Nations  is  not  an 
universal  but  a  particular  law.  All  that  can  be  done  on  this 
subject  in  a  treatise  on  the  Law  of  Nations,  is  therefore  to  give 
the  general  rules  that  ought  to  be  observed  by  nations  in  rela- 
tion to  their  treaties.  The  particulars  of  the  different  agree- 
ments relates  to  what  passes  between  certain  nations;  but  the 
law  and  the  obligations  resulting  from  it,  is  matter  of  fact,  and 
belongs  to  history. 

Certain  maxims  and  customs  consecrated  by  long  use,  and 
observed  by  nations  between  each  other  as  a  kind  of  law,  form 
the  Customary  Law  of  Nations,  or  the  custom  of  nations.  This 
Law  is  founded  on  a  tacit  consent,  or  if  you  wall,  on  a  tacit 
convention  of  the  nations  that  observe  it  with  respect  to  each 
other.  Whence  it  appears,  that  it  is  only  binding  to  those 
nations  that  have  adopted  it,  and  that  it  is  not  universal,  any 
more  than  Conventional  Laws.  It  must  be  here  also  observed 
of  this  Customary  Law,  that  the  particulars  relating  to  it,  do 
not  belong  to  a  systematic  treatise  on  the  Law  of  Nations,  but 
that  we  ought  to  confine  ourselves  to  the  giving  a  general 
theory  of  it;  that  is,  to  the  rules  which  here  ought  to  be  ob- 
served, as  well  with  respect  to  its  effects,  as  in  relation  to  the 
matter  itself;  and  in  this  last  respect,  these  rules  will  serve  to 
distinguish  the  lawful  and  innocent  customs  from  those  that 
are  unjust  and  illegal. 

When  a  custom  is  generally  established,  either  between  all 
the  polite  nations  in  the  world,  or  only  between  those  of  a  cer- 
tain continent,  as  of  Europe,  for  example,  or  those  who  have  a 
more  frequent  correspondence;    if  that  custom  is  in  its  own 


NATURE,  ORIGIN,  AND  DEVELOPMENT  15 

nature  indifferent,  and  much  more  if  it  be  a  wise  and  useful 
one,  it  ought  to  be  obhgatory  to  all  those  nations  who  are  con- 
sidered as  having  given  their  consent  to  it.  And  they  are  bound 
to  observe  it  with  respect  to  each  other,  while  they  have  not 
expressly  declared  that  they  will  not  adhere  to  it.  But  if  that 
custom  contains  anything  unjust  or  illegal,  it  is  of  no  force; 
and  every  nation  is  under  an  obligation  to  abandon  it,  nothing 
being  able  to  oblige  or  permit  a  nation  to  violate  a  Natural  Law. 

These  three  kinds  of  the  Law  of  Nations,  Voluntary,  Conven- 
tional, and  Customary,  together  compose  the  Positive  Law  of 
Nations.  For  they  all  proceed  from  the  volition  of  nations; 
the  Voluntary  Law,  from  their  presumed  consent;  the  Conven- 
tional Law,  from  an  express  consent;  and  the  Customary  Law, 
from  a  tacit  consent;  and  as  there  can  be  no  other  manner  of 
deducing  any  law  from  the  will  of  nations,  there  are  only  these 
three  kinds  of  the  Positive  Law  of  Nations. 

We  have  carefully  distinguished  from  them  the  Natural  or 
Necessary  Law  of  Nations;  without,  however,  treating  of  them 
separately.  But  after  having  established,  with  respect  to  each 
what  the  Law  necessarily  prescribes,  we  shall  at  length  add,  how 
and  in  what  manner  the  decisions  of  the  Voluntary  Law  ought 
to  be  modified,  or,  which  is  the  same  thing,  in  other  terms,  we 
shall  explain,  how,  in  virtue  of  the  liberty  of  nations,  and  the 
rules  of  natural  society,  the  External  Law  that-  ought  to  be  ob- 
served among  them,  differs  in  certain  instances  from  the  maxims 
of  the  Internal  Law,  which  is  always  obligatory  wdth  respect 
to  conscience.  As  to  the  laws  introduced  by  treaties,  or  by 
custom,  there  is  no  room  to  fear  that  any  one  will  confound  them 
with  the  Natural  Law  of  Nations.  They  form  that  species  of  the 
Law  of  Nations,  which  authors  have  distinguished  by  the  name 
of  Arbitrary. 

To  give  at  present  a  general  direction,  in  relation  to  the  dis- 
tinction between  Necessary  and  Voluntary  Laws,  we  shall 
reserve,  that  the  Necessary  Law  being  always  obligatory  with 
respect  to  conscience,  a  nation  ought  never  to  lose  sight  of  it, 
when  it  deliberates  on  the  part  it  is  to  take,  in  order  to  fulfil  its 
duty;   but  when  it  is  requisite  to  examine  what  it  may  require 


16  DOCUMENTS  ON  INTERNATIONAL  LAW 

from  other  states,  it  ought  to  consult  the  Voluntary  Law,  the 
maxims  of  which  are  consecrated  to  the  safety  and  advantage 
of  universal  society.  —  {Droit  des  Gens,  Preliminaires.) 

5.    A  Quasi-Legislature  for  Nations 

Extract  from  the  Final  Act  of  the  Second  Interna- 
tional Peace  Conference  at  the  Hague,  1907 

Finally,  the  Conference  recommends  to  the  Powers  the  as- 
sembly of  a  Third  Peace  Conference,  which  might  he  held  within 
a  period  corresponding  to  that  which  has  elapsed  since  the  pre- 
ceding Conference,  at  a  date  to  be  fixed  by  common  agreement 
between  the  Powers,  and  it  calls  their  attention  to  the  necessity 
of  preparing  the  programme  of  this  Third  C'onference  a  sufficient 
time  in  advance  to  ensure  its  deliberations  being  conducted 
with  the  necessary  authority  and  expedition. 

In  order  to  attain  this  object  the  Conference  considers  that 
it  would  be  very  desirable  that,  some  two  years  before  the  prob- 
able date  of  the  meeting,  a  preparatory  Committee  should  be 
charged  by  the  Governments  with  the  task  of  collecting  the 
various  proposals  to  be  submitted  to  the  Conference,  of  ascer- 
taining what  subjects  are  ripe  for  embodiment  in  an  Inter- 
national Regulation,  and  of  preparing  a  programme  which  the 
Governments  should  decide  upon  in  sufficient  time  to  enable 
it  to  bo  carefully  examined  by  the  countries  interested.  This 
Committee  should  further  be  entrusted  with  the  task  of  pro- 
posing a  system  of  organization  and  procedure  for  the  Con- 
ference itself. 

Note. — This  recommendation  of  the  Hague  Conference  of  1907  is 
very  important.  Up  to  the  present  time  (June,  1914),  several  states 
have  appointed  Committees  of  their  own  to  study  from  the  domestic 
point  of  view  the  questions  which  are  likely  to  come  before  the  third 
Peace  Conference,  of  which  the  regulation  of  the  laws  and  customs  of 
naval  war  is  probably  the  most  urgent.  This  is  excellent  for  a  first 
step;  but  an  international  body  is  required  for  the  comparison  and  corre- 
lation of  the  separate  Reports  of  these  Committees,  as  was  done  before 
the  Naval  Conference  of  London  in  1908  by  a  few  British  officials  assisted 
by  M.  Fromageot,  the  distinguished  French  jurist. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  17 

6.   A  Quasi-State 

The  Charter  of  the  British  South  Africa  Company, 

1889 

Victoria,  by  the  Grace  of  God,  of  the  United  Kingdom  of 
Great  Britain  and  Ireland  Queen,  Defender  of  the  Faith. 

To  all  to  whom  these  presents  shall  come,  Greeting. 

Whereas  a  Humble  Petition  has  been  presented  to  Us  in  Our 
Council  by  (here  follows  a  series  of  names) . 

And  whereas  the  said  Petition  states  amongst  other  things:  — 

That  the  Petitioners  and  others  are  associated  for  the  purpose 
of  forming  a  Company  or  Association,  to  be  incorporated, 
if  to  Us  should  seem  fit,  for  the  objects  in  the  said  Petition 
set  forth,  under  the  corporate  name  of  The  British  South 
Africa  Company. 

That  the  existence  of  a  powerful  British  Company,  controlled 
by  those  of  Our  subjects  in  whom  We  have  confidence,  and 
having  its  principal  field  of  operations  in  that  region  of 
South  Africa  lying  to  the  north  of  Bechuanaland  and  to 
the  west  of  Portuguese  East  Africa,  would  be  advantageous 
to  the  commercial  and  other  interests  of  Our  subjects  in 
the  United  Kingdom  and  in  Our  Colonies. 

That  the  Petitioners  desire  to  carry  into  effect  divers  con- 
cessions and  agreements  which  have  been  made  by  certain 
of  the  chiefs  and  tribes  inhabiting  the  said  region,  and 
such  other  concessions  agreements  grants  and  treaties  as 
the  Petitioners  may  hereafter  obtain  within  the  said  region 
or  elsewhere  in  Africa,  with  the  view  of  promoting  trade 
commerce  civiHzation  and  good  government  (including 
the  regulation  of  hquor  traffic  with  the  natives)  in  the 
territories  which  are  or  may  be  comprised  or  referred  to 
in  such  concessions  agreements  grants  and  treaties  as 
aforesaid. 

That  the  Petitioners  believe  that  if  the  said  concessions 
agreements  grants  and  treaties  can  be  carried  into  effect, 
the  condition  of  the  natives  inhabiting  the  said  territories 
will  be  materially  improved  and  their  civiUzation  advanced, 


18  DOCUMENTS  ON  INTERNATIONAL  LAW 

and  an  organization  established  which  will  tend  to  the 
suppression  of  the  slave  trade  in  the  said  territories,  and  to 
the  opening  up  of  the  said  territories  to  the  immigration 
of  Europeans,  and  to  the  lawful  trade  and  commerce  of 
Our  subjects  and  of  other  nations. 
That  the  success  of  the  enterprise  in  which  the  Petitioners 
are  engaged  would  be  greatly  advanced  if  it  should  seem 
fit  to  Us  to  grant  them  Our  Royal  Charter  of  incorporation 
as  a  British  Company  under  the  said  name  or  title,  or  such 
other  name  and  title,  and  with  such  powers,  as  to  Us  may 
seem  fit  for  the  purpose  of  more  effectually  carrying  into 
effect  the  objects  aforesaid. 
That  large  sums  of  money  have  been  subscribed  for  the 
purposes  of  the  intended  Company  by  the  Petitioners  and 
others,  who  are  prepared  also  to  subscribe  or  to  procure 
such  further  sums  as  may  hereafter  be  found  requisite  for 
the  development  of  the  said  enterprise,  in  the  event  of 
Our  being  pleased  to  grant  to  them  Our  Royal  Charter  of 
incorporation  as  aforesaid. 
Now,  therefore.  We  having  taken  the  said  Petition  into  Our 
Royal  consideration  in  Our  Council,  and  being  satisfied  that 
the  intentions  of  the  Petitioners  are  praiseworthy  and  deserve 
encouragement,  and  that  the  enterprise  in  the  Petition  de- 
scribed may  be  productive  of  the  benefits  set  forth  therein, 
by  Our  Prerogative  Royal  and  of  Our  especial  grace,  certain 
knowledge  and  mere  motion,   have   constituted   erected    and 
incorporated,  and  by  this  Our  Charter  for  Us  and  Our  Heirs 
and  Royal  successors  do  constitute  erect  and  incorporate  into 
one  body  politic  and  corporate  by  the  name  of  The  British  South 
Africa  Company  the  said  James  Duke  of  Abercorn,  Alexander 
William  George  Duke  of  Fife,  Edric  Frederick  Lord  Gifford, 
Cecil  John  Rhodes,  Alfred  Beit,  Albert  Henry  George  Grey 
and  George  Cawston,  and  such  other  persons  and  such  bodies 
as  from  time  to  time  become  and  are  members  of  the  body 
politic  and  corporate  by  these  presents  constituted,  erected  and 
incorporated,  with  perpetual  succession  and  a  common  seal, 
with  power  to  break  alter  or  renew  the  same  at  discretion,  and 


NATURE,  ORIGIN,  AND  DEVELOPMENT  19 

with  the  further  authorities,  powers,  and  privileges  conferred, 
and  subject  to  the  conditions  imposed  by  this  Our  Charter: 
And  We  do  hereby  accordingly  will  ordain  give  grant  constitute 
appoint  and  declare  as  follows  (that  is  to  say) :  — 

1.  The  principal  field  of  the  operations  of  The  British  South 
Africa  Company  (in  this  Our  Charter  referred  to  as  "the 
Company")  shall  be  the  region  of  South  Africa  lying  immedi- 
ately to  the  north  of  British  Bechuanaland,  and  to  the  north 
and  west  of  the  South  African  RepubHc,  and  to  the  west  of  the 
Portuguese  Dominions. 

2.  The  Company  is  hereby  authorised  and  empowered  to 
hold,  use  and  retain  for  the  purposes  of  the  Company  and  on 
the  terms  of  this  Our  Charter,  the  full  benefit  of  the  concessions 
and  agreements  made  as  aforesaid,  so  far  as  they  are  vahd,  or 
any  of  them,  and  all  interests,  authorities  and  powers  comprised 
or  referred  to  in  the  said  concessions  and  agreements.  Provided 
always  that  nothing  herein  contained  shall  prejudice  or  affect 
any  other  vaUd  and  subsisting  concessions  or  agreements  which 
may  have  been  made  by  any  of  the  chiefs  or  tribes  aforesaid, 
and  in  particular  nothing  herein  contained  shall  prejudice  or 
affect  certain  concessions  granted  in  and  subsequent  to  the 
year  1880  relating  to  the  territory  usually  known  as  the  district 
of  the  Tati;  nor  shall  anything  herein  contained  be  construed 
as  giving  any  jurisdiction,  administrative  or  otherwise,  within 
the  said  district  of  the  Tati,  the  hmits  of  which  district  are  as 
follows,  viz.,  from  the  place  were  the  Shasi  River  rises  to  its 
junction  with  the  Tati  and  Ramaquaban  Rivers,  thence  along 
the  Ramaquaban  River  to  where  it  rises  and  thence  along  the 
watershed  of  those  Rivers. 

3.  The  Company  is  hereby  further  authorised  and  em- 
powered, subject  to  the  approval  of  one  of  Our  Principal  Secre- 
taries of  State  (herein  referred  to  as  "Our  Secretary  of  State") 
from  time  to  time,  to  acquire  by  any  concession  agreement  grant 
or  treaty,  all  or  any  rights  interests  authorities  jurisdictions  and 
powers  of  any  kind  or  nature  whatever,  including  powers  neces- 
sary for  the  purposes  of  government,  and  the  preservation  of 
public  order  in  or  for  the  protection  of  territories,  lands,  or 


20  DOCUMENTS  ON   INTERNATIONAL  LAW 

property  comprised  or  referred  to  in  the  concessions  and  agree- 
ments made  as  aforesaid  or  affecting  other  territories,  lands,  or 
property  in  Africa,  or  the  inhabitants  thereof,  and  to  hold,  use 
and  exercise  such  territories,  lands,  property,  rights,  interests, 
authorities,  jurisdictions  and  powers  respectively  for  the  pur- 
poses of  the  Company,  and  on  the  terms  of  this  Our  Charter. 

4.  Provided  that  no  powers  of  government  or  administra- 
tion shall  be  exercised  under  or  in  relation  to  any  such  last- 
mentioned  concession  agreement  grant  or  treaty,  until  a  copy 
of  such  concession  grant  or  treaty  in  such  form  and  with  such 
maps  or  particulars  as  Our  Secretary  of  State  approves  verified 
as  he  requires,  has  been  transmitted  to  him,  and  he  has  signified 
his  approval  thereof  either  absolutely  or  subject  to  any  condi- 
tions or  reservations;  and  provided  also  that  no  rights,  interests, 
authorities,  jurisdictions  or  powers  of  any  description  shall  be 
acquired  by  the  Company  within  the  said  district  of  the  Tati 
as  hereinbefore  described,  without  the  previous  consent  in 
writing  of  the  owners  for  the  time  being  of  the  concessions  above 
referred  to  relating  to  the  said  district,  and  the  approval  of  Our 
Secretary  of  State. 

5.  The  Company  shall  be  bound  by  and  shall  fulfill  all  and 
singular  the  stipulations  on  its  part  contained  in  any  such  con- 
cession grant  or  treaty  as  aforesaid,  subject  to  any  subsequent 
agreement  affecting  those  stipulations  approved  by  Our  Secre- 
tary of  State. 

6.  The  Company  shall  always  be  and  remain  British  in  char- 
acter and  domicile,  and  shall  have  its  principal  office  in  Great 
Britain,  and  the  Company's  principal  representative  in  South 
Africa,  and  the  Directors  shall  always  be  natural  born  British 
subjects,  or  persons  who  have  been  naturahzed  as  British  sub- 
jects by  or  under  an  Act  of  Parliament  of  Our  United  Kingdom; 
but  this  Article  shall  not  disqualify  any  person  nominated  a 
Director  by  this  Our  Charter,  or  any  person  whose  election  as  a 
Director  shall  have  been  approved  by  Our  Secretary  of  State, 
from  acting  in  that  capacity. 

7.  In  case  at  any  time  any  difference  arises  between  any  chief 
or  tribe  inhabiting  any  of  the  territories  aforesaid  and  the  Com- 


NATURE,  ORIGIN,  AND  DE\T5L0PMENT  21 

pany,  that  difference  shall,  if  Our  Secretary  of  State  so  require, 
be  submitted  by  the  Company  to  him  for  his  decision,  and  the 
Company  shall  act  in  accordance  with  such  decision. 

8.  If  at  any  time  Our  Secretary  of  State  thinks  fit  to  dissent 
from  or  object  to  any  of  the  dealings  of  the  Company  with  any 
foreign  power  and  to  make  known  to  the  Company  any  sug- 
gestion founded  on  that  dissent  or  objection,  the  Company 
shall  act  in  accordance  with  such  suggestion. 

9.  If  at  any  time  Our  Secretary  of  State  thinks  fit  to  object 
to  the  exercise  by  the  Company  of  any  authority,  power,  or  right 
within  any  part  of  the  territories  aforesaid,  on  the  ground  of 
there  being  an  adverse  claim  to  or  in  respect  of  that  part,  the 
Company  shall  defer  to  that  objection  until  such  time  as  any 
such  claim  has  been  withdrawn  or  finally  dealt  with  or  settled 
by  Our  Secretary  of  State. 

10.  The  Company  shall  to  the  best  of  its  ability  preserve 
peace  and  order  in  such  ways  and  manners  as  it  shall  consider 
necessary,  and  may  with  that  object  make  ordinances  (to  be 
approved  by  Our  Secretary  of  State)  and  may  establish  and 
maintain  a  force  of  poUce. 

11.  The  Company  shall  to  the  best  of  its  ability  discourage 
and,  so  far  as  may  be  practicable,  abolish  by  degrees,  any 
system  of  slave  trade  or  domestic  servitude  in  the  territories 
aforesaid. 

12.  The  Company  shall  regulate  the  traffic  in  spirits  and 
other  intoxicating  liquors  within  the  territories  aforesaid,  so 
as,  as  far  as  practicable,  to  prevent  the  sale  of  any  spirits  or 
other  intoxicating  hquor  to  any  natives. 

13.  The  Company  as  such,  or  its  officers  as  such,  shall  not 
in  any  way  interfere  with  the  religion  of  any  class  or  tribe  of 
the  peoples  of  the  territories  aforesaid  or  of  any  of  the  inhabi- 
tants thereof,  except  so  far  as  may  be  necessary  in  the  interests 
of  humanity,  and  all  forms  of  reUgious  worship  or  rehgious 
ordinances  may  be  exercised  within  the  said  territories  and  no 
hindrance  shall  be  offered  thereto  except  as  aforesaid. 

14.  In  the  administration  of  justice  to  the  said  peoples  or 
inhabitants,  careful  regard  shall  always  be  had  to  the  customs 


22  DOCUMENTS  ON  INTERNATIONAL  LAW 

and  laws  of  the  class  or  tribe  or  nation  to  which  the  parties 
respectively  belong,  especially  with  respect  to  the  holding, 
possession,  transfer  and  disposition  of  lands  and  goods  and 
testate  or  intestate  succession  thereto,  and  marriage  divorce 
and  legitimacy  and  other  rights  of  property  and  personal 
rights,  but  subject  to  any  British  laws  which  may  be  in  force 
in  any  of  the  territories  aforesaid,  and  appUcable  to  the  peoples 
or  inhabitants  thereof. 

15.  If  at  any  time  Our  Secretary  of  State  thinks  fit  to  dissent 
from  or  object  to  any  part  of  the  proceedings  or  system  of  the 
Company  relative  to  the  peoples  of  the  territories  aforesaid  or 
to  any  of  the  inhabitants  thereof,  in  respect  of  slavery  or  re- 
ligion or  the  administration  of  justice,  or  any  other  matter,  he 
shall  make  known  to  the  Company  his  dissent  or  objection,  and 
the  Company  shall  act  in  accordance  with  his  directions  duly 
signified. 

16.  In  the  event  of  the  Company  acquiring  any  harbour  or 
harbours,  the  Company  shall  freely  afford  all  facilities  for  or 
to  Our  ships  therein  without  payment,  except  reasonable  charges 
for  work  done  or  services  rendered  or  materials  or  things  supplied. 

17.  The  Company  shall  furnish  annually  to  Our  Secretary 
of  State,  as  soon  as  conveniently  may  be  after  the  close  of  the 
financial  year,  accounts  of  its  expenditure  for  administrative 
purposes,  and  of  all  sums  received  by  it  by  way  of  public  reve- 
nue, as  distinguished  from  its  commercial  profits,  during  the 
financial  year,  together  with  a  report  as  to  its  public  proceed- 
ings and  the  condition  of  the  territories  within  the  sphere  of  its 
operations.  The  Company  shall  also  on  or  before  the  com- 
mencement of  each  financial  year  furnish  to  Our  Secretary  of 
State  an  estimate  of  its  expenditure  for  administrative  pur- 
poses, and  of  its  public  revenue  (as  above  defined)  for  the 
ensuing  year.  The  Company  shall  in  addition  from  time  to 
time  furnish  to  Our  Secretary  of  State  any  reports,  accounts  or 
information  with  which  he  may  require  to  be  furnished. 

18.  The  several  officers  of  the  Company  shall,  subject  to 
the  rules  of  official  subordination,  and  to  any  regulations  that 
may  be  agreed  upon,  communicate  freely  with  Our  High  Com- 


NATURE,  ORIGIN,  AND  DEVELOPMENT  23 

missioner  in  South  Africa,  and  any  others  Our  officers,  who  may 
be  stationed  within  any  of  the  territories  aforesaid,  and  shall 
pay  due  regard  to  any  requirements,  suggestions,  or  requests 
which  the  said  High  Commissioner  or  other  officers  shall  make 
to  them  or  any  of  them,  and  the  Company  shall  be  bound  to 
enforce  the  observance  of  this  article. 

19.  The  Company  may  hoist  and  use  on  its  buildings  and 
elsewhere  in  the  territories  aforesaid,  and  on  its  vessels,  such 
distinctive  flag  indicating  the  British  character  of  the  Com- 
pany as  our  Secretary  of  State  and  the  Lords  Commissioners  of 
the  Admiralty  shall  from  time  to  time  approve. 

20.  Nothing  in  this  Our  Charter  shall  be  deemed  to  autho- 
rize the  Company  to  set  up  or  grant  any  monopoly  of  trade; 
provided  that  the  estabhshment  of  or  the  grant  of  concessions 
for  banks,  railways,  tramways,  docks,  telegraphs,  water-works, 
or  other  similar  undertakings  or  the  establishment  of  any 
system  of  patent  or  copyright  approved  by  our  Secretary  of 
State,  shall  not  be  deemed  monopoUes  for  this  purpose.  The 
Company  shall  not,  either  directly  or  indirectly  hinder  any 
Company  or  persons  who  now  are,  or  hereafter  may  be,  law- 
fully and  peaceably  carrying  on  any  business,  concern,  or 
venture  within  the  said  District  of  the  Tati  hereinbefore  de- 
scribed, but  shall  by  permitting  and  facilitating  transit  by 
every  lawful  means  to  and  from  the  District  of  the  Tati,  across 
its  own  territories  or  where  it  has  jurisdiction  in  that  behalf, 
and  by  all  other  reasonable  and  lawful  means,  encourage, 
assist  and  protect  all  British  subjects  who  now  are,  or  here- 
after may  be,  lawfully  and  peaceably  engaged  in  the  prosecu- 
tion of  a  lawful  enterprise  within  the  said  District  of  the  Tati. 

21.  For  the  preservation  of  elephants  and  other  game,  the 
Company  may  make  such  regulations  and  (notwithstanding 
anything  hereinbefore  contained)  may  impose  such  licence 
duties  on  the  killing  or  taking  of  elephants  or  other  game  as 
they  may  see  fit:  Provided  that  nothing  in  such  regulations 
shall  extend  to  diminish  or  interfere  with  any  hunting  rights 
which  may  have  been  or  may  hereafter  be  reserved  to  any 
native  chiefs  or  tribes  by  treaty,  save  so  far  as  any  such  reg- 


24  DOCUMENTS  ON  INTERNATIONAL  LAW 

ulations  may  relate  to  the  establishment  and  enforcement  of 
a  close  season. 

22.  The  Company  shall  be  subject  to  and  shall  perform  and 
undertake  all  the  obhgations  contained  in  or  undertaken  by 
Ourselves  under  any  treaty  agreement  or  arrangement  between 
Ourselves  and  any  other  State  or  Power  whether  already  made 
or  hereafter  to  be  made.  In  all  matters  relating  to  the  observ- 
ance of  this  Article,  or  to  the  exercise  within  the  Company's 
territories  for  the  time  being,  of  any  jurisdiction  exerciseable 
by  Us  under  the  Foreign  Jurisdiction  Acts,  the  Company  shall 
conform  to  and  observe  and  carry  out  all  such  directions  as 
may  from  time  to  time  be  given  in  that  behalf  by  Our  Secre- 
tary of  State,  and  the  Company  shall  appoint  all  necessary 
officers  to  perform  such  duties,  and  shall  provide  such  Courts 
and  other  requisites  as  may  from  time  to  time  be  necessary 
for  the  administration  of  justice. 

23.  The  original  share  capital  of  the  Company  shall  be 
£1,000,000  divided  into  1,000,000  shares  of  £1  each. 

24.  The  Company  is  hereby  further  specially  authorized  and 
empowered  for  the  purposes  of  this  Our  Charter  from  time  to 
time  — 

(i)  To  issue  shares  of  different  classes  or  descriptions,  to 
increase  the  share  capital  of  the  Company,  and  to  borrow 
moneys  by  debentures  or  other  obligations. 

(ii)  To  acquire  and  hold,  and  to  charter  or  otherwise  deal 
with,  steam  vessels  and  other  vessels. 

(iii)  To  establish  or  authorize  banking  companies  and  other 
companies  and  undertakings  or  associations  of  every  de- 
scription, for  purposes  consistent  with  the  provisions  of 
this  Our  Charter. 

(iv)  To  make  and  maintain  roads  railways  telegraphs  har- 
bours and  any  other  works  which  may  tend  to  the  develop- 
ment or  improvement  of  the  territories  of  the  Company. 

(v)  To  carry  on  mining  and  other  industries,  and  to  make 
concessions  of  mining  forestal  or  other  rights. 

(vi)  To  improve  develop  clear  plant  irrigate  and  cultivate 
any  lands  included  within  the  territories  of  the  Company. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  25 

(vii)  To  settle  any  such  territories  and  lands  as  aforesaid, 
and  to  aid  and  promote  immigration. 

(viii)  To  grant  lands  for  terms  of  years  or  in  perpetuity,  and 
either  absolutely,  or  by  way  of  mortgage  or  otherwise. 

(ix)  To  make  loans  or  contributions  of  money  or  money's 
worth,  for  promoting  any  of  the  objects  of  the  Company. 

(x)  To  acquire  and  hold  personal  property. 

(xi)  To  acquire  and  hold  (without  licence  in  mortmain  or 
other  authority  than  this  Our  Charter)  lands  in  the  United 
Kingdom,  not  exceeding  five  acres  in  all,  at  any  one  time 
for  the  purposes  of  the  offices  and  business  of  the  Com- 
pany, and  (subject  to  any  local  law)  lands  in  any  of  Our 
Colonies  or  Possessions  and  elsewhere,  convenient  for 
carrying  on  the  management  of  the  affairs  of  the  Company, 
and  to  dispose  from  time  to  time  of  any  such  lands  when 
not  required  for  that  purpose. 

(xii)  To  carry  on  any  lawful  commerce,  trade,  pursuit,  busi- 
ness operations,  or  dealing  whatsoever  in  connection  with 
the  objects  of  the  Company. 

(xiii)  To  establish  and  maintain  agencies  in  Our  Colonies 
and  Possessions,  and  elsewhere. 

(xiv)  To  sue  and  be  sued  by  the  Company's  name  of  incor- 
poration, as  well  in  Our  Courts  in  Our  United  Kingdom, 
or  in  Our  Courts  in  Our  Colonies  or  Possessions,  or  in  Our 
Courts  in  Foreign  countries  or  elsewhere. 

(xv)  To  do  all  lawful  things  incidental  or  conducive  to  the 
exercise  or  enjoyment  of  the  rights,  interests,  authorities 
and  powers  of  the  Company  in  this  Our  Charter  expressed 
or  referred  to,  or  any  of  them. 

25.  Within  one  year  after  the  date  of  this  Our  Charter,  or 
such  extended  period  as  may  be  certified  by  our  Secretary  of 
State,  there  shall  be  executed  by  the  Members  of  the  Company 
for  the  time  being  a  Deed  of  Settlement,  providing  so  far  as 
necessary  for  — 

(i)  The  further  definition  of  the  objects  and  purposes  of  the 
Company. 

(ii)  The  classes  or  descriptions  of  shares  into  which  the  capital 


26  DOCUMENTS  ON   INTERNATIONAL  LAW 

of  the  Company  is  divided,  and  the  calls  to  be  made  in 
respect  thereof,  and  the  terms  and  conditions  of  member- 
ship of  the  Company. 

(iii)  The  division  and  distribution  of  profits. 

(iv)  General  Meetings  of  the  Company ;  the  appointment  by 
Our  Secretary  of  State  (if  so  required  by  him)  of  an  Official 
Director,  and  the  number  qualification  appointment  re- 
muneration rotation  removal  and  powers  of  Directors  of 
the  Company,  and  of  other  officers  of  the  Company. 

(v)  The  registration  of  Members  of  the  Company,  and  the 
transfer  of  shares  in  the  capital  of  the  Company. 

(vi)  The  preparation  of  annual  accounts  to  be  submitted  to 
the  Members  at  a  General  Meeting. 

(vii)  The  audit  of  those  accounts  by  independent  auditors. 

(viii)  The  making  of  by-laws. 

(ix)  The  making  and  using  of  official  seals  of  the  Company. 

(x)  The  constitution  and  regulation  of  Committees  or  Local 
Boards  of  Management. 

(xi)  The  making  and  execution  of  supplementary  deeds  of 
settlement. 

(xii)  The  winding  up  (in  case  of  need)  of  the  Company's 
affairs. 

(xiii)  The  government  and  regulation  of  the  Company  and 
of  its  affairs. 

(xiv)  Any  other  matters  usual  or  proper  to  be  provided  for 
in  respect  of  a  chartered  Company. 

26.  The  Deed  of  Settlement  shall,  before  the  execution 
thereof,  be  submitted  to  and  approved  by  the  Lords  of  Our 
Council,  and  a  certificate  of  their  approval  thereof,  signed  by 
the  Clerk  of  our  Council,  shall  be  endorsed  on  this  Our  Charter 
and  be  conclusive  evidence  of  such  approval,  and  on  the  Deed 
of  Settlement,  and  such  Deed  of  Settlement  shall  take  effect 
from  the  date  of  such  approval,  and  shall  be  binding  upon  the 
Company,  its  members,  officers  and  servants,  and  for  all  other 
purposes  whatsoever. 

27.  The  provisions  of  the  Deed  of  Settlement  or  of  any  sup- 
plementary Deed  for  the  time  being  in  force,  may  be  from  time 


NATURE,  ORIGIN,  AND  DEVELOPMENT  27 

to  time  repealed,  varied  or  added  to  by  a  supplementary  Deed, 
made  and  executed  in  such  manner  as  the  Deed  of  Settlement 
prescribes.  Provided  that  the  provisions  of  any  such  Deed 
relative  to  the  Official  Director  shall  not  be  repealed,  varied 
or  added  to  without  the  express  approval  of  Our  Secretary  of 
State. 

28.  The  Members  of  the  Company  shall  be  individually 
hable  for  the  debts  contracts  engagements  and  habilities  of  the 
Company  to  the  extent  only  of  the  amount,  if  any,  for  the  time 
being  unpaid,  on  the  shares  held  by  them  respectively. 

29.  Until  such  Deed  of  Settlement  as  aforesaid  takes  effect 
the  said  James  Duke  of  Abercorn  shall  be  the  President;  the 
said  Alexander  William  George  Duke  of  Fife,  shall  be  Vice- 
President;  and  the  said  Edric  Frederick  Lord  Gifford,  Cecil 
John  Rhodes,  Alfred  Beit,  Albert  Henry  George  Grey,  and 
George  Cawston,  shall  be  the  Directors  of  the  Company;  and 
may  on  behalf  of  the  Company  do  all  things  necessary  or 
proper  to  be  done  under  this  Our  Charter  by  or  on  behalf  of 
the  Company:  Provided  always  that,  notwithstanding  anything 
contained  in  the  Deed  of  Settlement  of  the  Company,  the  said 
James  Duke  of  Abercorn,  Alexander  William  George  Duke  of 
Fife,  and  Albert  Henry  George  Grey,  shall  not  be  subject  to 
retire  from  office  in  accordance  with  its  provisions  but  shall 
be  and  remain  Directors  of  the  Company  until  death,  incapac- 
ity to  act,  or  resignation,  as  the  case  may  be. 

30.  And  We  do  further  will  ordain  and  declare  that  this 
Our  Charter  shall  be  acknowledged  by  Our  governors  and  Our 
naval  and  miUtary  officers  and  Our  consuls,  and  Our  other 
officers  in  Our  Colonies  and  Possessions,  and  on  the  high  seas, 
and  elsewhere,  and  they  shall  severally  give  full  force  and  effect 
to  this  Our  Charter,  and  shall  recognize  and  be  in  all  things 
aiding  to  the  Company  and  its  officers. 

31.  And  We  do  further  will,  ordain  and  declare  that  this 
Our  Charter  shall  be  taken  construed  and  adjudged  in  the 
most  favourable  and  beneficial  sense  for,  and  to  the  best  ad- 
vantage of  the  Company  as  well  in  Our  Courts  in  Our  United 
Kingdom,  and  in  Our  Courts  in  Our  Colonies  or  Possessions,  and 


28  DOCUMENTS  ON  INTERNATIONAL  LAW 

in  Our  Courts  in  Foreign  countries  or  elsewhere,  notwithstand- 
ing that  there  may  appear  to  be  in  this  Our  Charter  any  non- 
recital,  mis-recital,  uncertainty  or  imperfection. 

32.  And  We  do  further  will,  ordain  and  declare  that  this 
Our  Charter  shall  subsist  and  continue  valid,  notwithstanding 
any  lawful  change  in  the  name  of  the  Company  or  in  the  Deed 
of  Settlement  thereof,  such  change  being  made  with  the  previous 
approval  of  Our  Secretary  of  State  signified  under  his  hand. 

33.  And  We  do  further  will,  ordain  and  declare  that  it  shall 
be  lawful  for  Us  Our  heirs  and  successors  and  we  do  hereby 
expressly  reserve  to  Ourselves  Our  heirs  and  successors  the 
right  and  power  by  writing  under  the  Great  Seal  of  the  United 
Kingdom  at  the  end  of  25  years  from  the  date  of  this  Our  Char- 
ter, and  at  the  end  of  every  succeeding  period  of  ten  years,  to 
add  to  alter  or  repeal  any  of  the  provisions  of  this  Our  Charter 
or  to  enact  other  provisions  in  substitution  for  or  in  addition 
to  any  of  its  existing  provisions.  Provided  that  the  right  and 
power  thus  reserved  shall  be  exercised  only  in  relation  to  so 
much  of  this  Our  Charter  as  relates  to  administrative  and  public 
matters.  And  We  do  further  expressly  reserve  to  Ourselves, 
Our  heirs  and  successors  the  right  to  take  over  any  building  or 
works  belonging  to  the  Company,  and  used  exclusively  or 
mainly  for  administrative  or  public  purposes  on  payment  to 
the  Company  of  such  reasonable  compensation  as  may  be 
agreed,  or  as  failing  agreement  may  be  settled  by  the  Commis- 
sioners of  Our  Treasury.  And  We  do  further  appoint,  direct 
and  declare  that  any  such  writing  under  the  said  Great  Seal 
shall  have  full  effect  and  be  binding  upon  the  Company,  its 
members,  officers  and  servants,  and  all  other  persons,  and  shall 
be  of  the  same  force  effect  and  validity  as  if  its  provisions  had 
been  part  of  and  contained  in  these  presents. 

34.  Provided  always  and  We  do  further  declare  that  noth- 
ing in  this  Our  Charter  shall  be  deemed  or  taken  in  anywise 
to  limit  or  restrict  the  exercise  of  any  of  Our  rights  or  powers 
with  reference  to  the  protection  of  any  territories  or  with 
reference  to  the  government  thereof  should  We  see  fit  to  include 
the  same  within  Our  dominions. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  29 

35.  And  We  do  lastly  will,  ordain  and  declare  without  prej- 
udice to  any  power  to  repeal  this  Our  Charter  by  law  belong- 
ing to  Us  Our  heirs  and  successors,  or  to  any  of  Our  Courts 
ministers  or  officers  independently  of  this  present  declara- 
tion and  reservation,  that  in  case  at  any  time  it  is  made  to 
appear  to  Us  in  Our  Council  that  the  Company  has  substan- 
tially failed  to  observe  and  conform  to  the  provisions  of  this 
Our  Charter,  or  that  the  Company  is  not  exercising  its  powers 
under  the  concessions,  agreements,  grants,  and  treaties  afore- 
said, so  as  to  advance  the  interests  which  the  Petitioners  have 
represented  to  Us  to  be  Ukely  to  be  advanced  by  the  grant  of 
this  Our  Charter,  it  shall  be  lawful  for  Us  Our  heirs  and  suc- 
cessors, and  We  do  hereby  expressly  reserve  and  take  to  Our- 
selves Our  heirs  and  successors  the  right  and  power  by  writing 
under  the  Great  Seal  of  Our  United  Kingdom  to  revoke  this 
Our  Charter,  and  to  revoke  and  annul  the  privileges,  powers 
and  rights  hereby  granted  to  the  Company.  —  (London  Gazette, 
Dec.  20,  1889.) 

Note.  —  The  territory  of  the  British  South  Africa  Company  was 
greatly  extended  by  a  further  grant  from  the  Crown  in  1891.  Its  admin- 
istration has  been  provided  for  by  a  series  of  Orders  in  Council  issued  at 
intervals  as  required,  special  care  being  taken  to  protect  the  natives  from 
ill-treatment.  In  1914  a  Legislative  Council  was  chosen  in  which  for  the 
first  time  there  were  twelve  elected  members  to  six  nominated  members. 
No  doubt  in  course  of  time  Charter  Government  will  be  superseded  by 
Responsible  Government. 

7.   A  Mode  of  Recognition  —  By  Declaration 

Frederick  T.  Frelinghuysen,  Secretary  of  State,  duly  em- 
powered therefore  by  the  President  of  the  United  States  of 
America,  and  pursuant  to  the  advice  and  consent  of  the  Senate, 
heretofore  given,  acknowledges  the  receipt  of  the  foregoing 
notification  from  the  International  Association  of  the  Congo, 
and  declares  that,  in  harmony  with  the  traditional  poHcy  of 
the  United  States,  which  enjoins  a  proper  regard  for  the  com- 
mercial interests  of  their  citizens  while,  at  the  same  time, 
avoiding  interference  with  controversies  between  other  powers 


30  DOCUMENTS  ON  INTERNATIONAL  LAW 

as  well  as  alliances  with  foreign  nations,  the  Government  of 
the  United  States  announces  its  sympathy  with,  and  approval 
of,  the  hmnane  and  benevolent  purposes  of  the  International 
Association  of  the  Congo,  administering,  as  it  does,  the  interests 
of  the  Free  States  there  estabhshed,  and  will  order  the  officers 
of  the  United  States,  both  on  land  and  sea,  to  recognize  the 
flag  of  the  International  African  Association,  as  the  flag  of  a 
friendly  government. 

In  testimony  whereof,  he  has  hereunto  set  his  hand  and 
affixed  his  seal,  this  twenty-second  day  of  April,  a.d.  1884, 
in  the  city  of  Washington. 

Fredk.  T.   Frelinghuysen. 

—  (British  Parliamentary  Papers,  Africa,  No.  4,  (1885),  p.  263; 
Moore,  International  Law  Digest,  I,  pp.  117,  118.) 


8.   Another  Mode  of  Recognition  —  By  Treaty 

Article  I 

The  International  Association  of  the  Congo  engages  not  to 
levy  duty  on  articles  or  merchandize  imported  directly  or  in 
transit  into  its  present  or  future  possessions  in  the  basins  of 
the  Congo  and  the  Niadi-Kwilu,  or  into  its  possessions  sit- 
uated on  the  Atlantic  Ocean.  This  exemption  from  duties 
especially  applies  to  merchandize  and  articles  of  commerce 
which  are  carried  by  the  roads  made  round  the  cataracts  of 
the  Congo. 

Article  II 

The  Subjects  of  the  German  Empire  shall  have  the  right  of 
sojourning  and  of  establishing  themselves  on  the  territories 
of  the  Association.  They  shall  be  treated  on  the  same  footing 
as  the  subjects  of  the  most  favoured  nation,  including  the  in- 
habitants of  the  country,  so  far  as  concerns  the  protection  of 
their  persons  and  possessions,  the  free  exercise  of  their  religion, 
the  recognition  and  defence  of  their  rights,  as  well  as  in  matters 
of  navigation,  trade,  or  manufactures. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  31 

Especially,  they  shall  have  the  right  of  buying,  selling,  and 
leasing  lands  and  buildings  situated  in  the  territories  of  the 
Association,  of  establishing  commercial  houses,  and  carrying 
on  trade  or  the  coasting  trade  under  the  German  flag. 

Article  III 

The  Association  engages  never  to  grant  any  privileges  what- 
soever to  the  subjects  of  any  other  nation  without  their  being 
immediately  extended  to  German  subjects. 

Article  IV 

In  the  event  of  the  cession  of  the  present  or  future  terri- 
tory of  the  Association,  or  of  any  part  of  it,  the  obligations 
contracted  by  the  Association  towards  the  German  Empire 
shall  be  transferred  to  the  occupier.  These  obligations  and  the 
rights  granted  by  the  Association  to  the  German  Empire  and 
its  subjects  shall  remain  in  force  after  every  cession  as  far  as 
regards  each  new  occupier. 

Article  V 

The  German  Empire  recognizes  the  flag  of  the  Association  — 
a  blue  flag  with  a  golden  star  in  the  centre  —  as  that  of  a 
friendly  State. 

Article  VI 

The  German  Empire  is  ready  on  its  part  to  recognize  the 
frontiers  of  the  territory  of  the  Association  and  of  the  new 
State  which  is  to  be  created,  as  they  are  shewn  in  the  annexed 
Map. 

Article  VII 

This  Convention  shall  be  ratified  and  the  ratification  shall 
be  exchanged  with  the  least  possible  delay. 

This  Convention  shall  come  into  force  immediately  after 
the  exchange  of  the  ratifications. 

Done  at  Berlin  the  8th.  November,  1884. 
—  (British  Parliamentary  Papers,  Africa,  No.  4,  (1885),  pp. 
263-264.) 


32  DOCUMENTS  ON  INTERNATIONAL  LAW 

9.    Conditional  Recognition  of  the  Independence  of  Servia 

The  High  Contracting  Parties  recognize  the  Independence 
of  the  Principahty  of  Servia,  subject  to  the  conditions  set  forth 
in  the  following  Article. 

In  Servia  the  ditference  of  religious  creeds  and  confessions 
shall  not  be  alleged  against  any  person  as  a  ground  for  exclu- 
sion or  incapacity  in  matters  relating  to  the  enjoyment  of  civil 
and  political  rights,  admission  to  public  employments,  functions, 
and  honours,  or  the  exercise  of  the  various  professions  and 
industries  in  any  locality  whatsoever. 

The  freedom  and  outward  exercise  of  all  forms  of  worship 
shall  be  assured  to  all  persons  belonging  to  Servia,  as  well  as  to 
foreigners,  and  no  hindrance  shall  be  offered  either  to  the 
hierarchical  organization  of  the  different  communions,  or  to 
their  relations  with  their  spiritual  chiefs.  —  (Treaty  of  Berlin, 
1878,  Arts.  34-35.) 

10.   Delayed  Recognition 

Extract  from  a  Speech  of  Sir  Edward  Grey  ^ 

On  the  general  question  I  will  not  go  back  to  the  subject  of 
the  old  regime  in  the  Congo  further  than  to  say  that  I  have 
always  made  it  very  clear  .  .  .  that  we  did  not  hold  the  Belgian 
Parliament  or  the  Belgian  people  responsible  for  any  of  those 
occurrences  (i.e.  The  atrocities  perpetrated  on   the   natives). 

I  would  only  say  as  regards  the  particular  point  of  the  Congo, 
that  I  am  sure  the  reports  which  have  been  laid  before  the 
House  show  that  the  condition  of  affairs  has  completely  changed 

'  These  words,  spoken  in  the  House  of  Commons  on  May  29,  1913, 
refer  to  the  annexation  of  the  Congo  Free  State  by  Belgium,  which 
took  place  in  1909,  but  was  not  recognized  by  Great  Britain  till  1913, 
when  it  was  quite  clear  that  the  worst  of  the  oppressions  inflicted  on 
the  natives  during  the  latter  years  of  Leopold  II  had  been  remedied 
by  the  constitutional  government  of  Belgium  and  the  humane  efforts  of 
the  new  King,  Albert  I. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  33 

from  that  which  existed  under  the  old  regime  before  the  re- 
sponsible Government  of  Belgium  took  the  Congo  in  hand.  — 
{The  Times,  May  30,  1913.) 


11.   A  Law-making  Agreement 
The  Declaration  of  Paris,   1856 

Considering : 

That  maritime  law,  in  time  of  war,  has  long  been  the  subject 
of  deplorable  disputes: 

That  the  uncertainty  of  the  law  and  of  the  duties  in  this  same 
matter  gives  occasion  to  differences  of  opinion  between  neutrals 
and  belligerents  which  may  cause  serious  difficulties  and  even 
conflicts : 

That  it  is  consequently  advantageous  to  establish  a  uniform 
doctrine  on  so  important  a  point : 

That  the  Plenipotentiaries  assembled  at  the  Congress  of  Paris 
cannot  better  respond  to  the  intentions  by  which  their  Govern- 
ments are  animated  than  by  seeking  to  introduce  into  inter- 
national relations  fixed  principles  in  this  respect: 

The  above-mentioned  Plenipotentiaries,  being  duly  author- 
ised, resolved  to  concert  among  themselves  as  to  the  means  of 
attaining  this  object;  and,  having  come  to  an  agreement,  have 
adopted  the  following  solemn  Declaration :  — 

1.  Privateering  is  and  remains  abolished: 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  excep- 
tion of  contraband  of  war: 

3.  Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  enemy's  flag: 

4.  Blockades,  in  order  to  be  binding,  must  be  effective; 
that  is  to  say  maintained  by  a  force  sufficient  really  to  prevent 
access  to  the  enemy's  coast. 

The  Governments  of  the  undersigned  Plenipotentiaries  en- 
gage to  bring  the  present  Declaration  to  the  knowledge  of  the 
States  which  have  not  been  called  upon  to  take  part  in  the 
Congress  of  Paris,  and  invite  them  to  accede  to  it. 


34  DOCUMENTS  ON  INTERNATIONAL  LAW 

Convinced  that  the  maxims  which  they  now  prochiim  cannot 
but  be  received  with  gratitude  by  the  whole  world,  the  under- 
signed Plenipotentiaries  doubt  not  that  the  efforts  of  their 
Governments  to  obtain  the  general  adoption  thereof  will  be 
crowned  with  full  success. 

The  present  Declaration  is  not  and  shall  not  be  binding 
except  between  those  powers  who  have  acceded  or  shall  ac- 
cede to  it. 

Note.  —  When  the  above  Declaration  was  drawn  up  it  was  signed 
by  seven  powers:  —  Great  Britain,  France,  Austria,  Russia,  Prussia, 
Sardinia  and  Turkey.  Since  then  forty  more  have  acceded  to  it,  the 
United  States  being  the  only  one  of  any  importance  whose  signature  is 
still  withheld.  But  American  statesmen  have  acted  on  it  in  every 
struggle  to  which  their  country  has  been  a  party  since  1856,  and  when 
the  United  States  has  been  neutral  have  expected  the  belligerents  to 
observe  it  towards  American  Shipping.  The  unbroken  observance  of 
nearly  sixty  years  has  made  the  Declaration  into  International  Law. 

12.   An  Agreement  that  Purported  to  be  Declaratory  of 
International  Law 

The  Rules  of  the  First  Armed  Neutrality,  1780 

Their  Majesties  after  having  already  insisted,  in  their  decla- 
rations to  the  belligerent  powers,  on  the  general  principles  of 
natural  right,  of  which  the  freedom  of  commerce  and  naviga- 
tion as  well  as  the  rights  of  neutral  nations  are  a  direct  conse- 
quence, have  resolved  no  longer  to  allow  them  to  be  dependent 
on  an  arbitrary  interpretation,  suggested  by  isolated  and 
momentary  interests.     With  this  view,  they  have  agreed, 

I.  That  all  vessels  may  freely  navigate  from  port  to  port, 
and  upon  the  coasts  of  nations  at  war. 

II.  That  property  belonging  to  the  subjects  of  States  at 
war,  shall  be  free  on  board  neutral  vessels,  excepting  merchan- 
dise of  contraband. 

III.  That  to  determine  what  characterises  a  blockaded  port, 
this  term  shall  only  be  allowed  to  those  where,  from  the  arrange- 
ments of  the  power  which  is  blockading,  with  vessels  stationary 
and  sufficiently  near,  there  is  an  evident  danger  in  entering. 


NATURE,  ORIGIN,  AND  DEVELOPMENT  35 

IV.  That  neutral  vessels  cannot  be  stopped,  without  just 
cause  and  evident  reasons;  that  they  shall  be  judged  without 
delay;  that  the  proceedings  shall  always  be  uniform,  prompt, 
and  legal;  and  that,  in  every  instance,  besides  the  reparation 
afforded  in  cases  in  which  there  has  been  loss,  but  not  offence, 
complete  satisfaction  shall  be  given  for  the  insult  offered  to  the 
flag  of  their  Majesties.  —  {Treaty  between  Russia  and  Denmark, 
1780.) 

Note.  —  All  the  important  Continental  states  accepted  these  rules, 
while  Great  Britain  opposed  most  of  them,  especially  the  second  and  third. 
In  the  course  of  thirty  years  from  their  promulgation  they  were  discarded 
by  their  authors,  revived  again  in  1800  by  the  Second  Armed  Neutrality, 
and  again  disregarded  under  stress  of  altered  circumstances. 


13.   An  Agreement  that  may  be  called  Semi-Declaratory 
of  International  Law 

The  Three  Rules  of  the  Treaty  of  Washington, 

1871 

In  deciding  the  matters  submitted  to  the  Arbitrators,  they 
shall  be  governed  by  the  following  three  rules,  which  are  agreed 
upon  by  the  high  contracting  parties  as  rules  to  be  taken  as 
applicable  to  the  case,  and  by  such  principles  of  International 
Law  not  inconsistent  therewith  as  the  Arbitrators  shall  deter- 
mine to  have  been  applicable  to  the  case. 

Rules 

A  neutral  Government  is  bound  — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming, 
or  equipping,  within  its  jurisdiction,  of  any  vessel  which  it  has 
reasonable  ground  to  believe  is  intended  to  cruise  or  to  carry  on 
war  against  a  Power  with  which  it  is  at  peace;  and  also  to  use 
like  diligence  to  prevent  the  departure  from  its  jurisdiction  of 
any  vessel  intended  to  cruise  or  carry  on  war  as  above,  such 
vessel  having  been  specially  adapted  in  whole  or  in  part,  within 
such  jurisdiction,  to  warlike  use. 


36  DOCUMENTS  ON  INTERNATIONAL  LAW 

Secondly,  not  to  permit  or  suffer  either  belligerent  to  make 
use  of  its  ports  or  waters  as  the  base  of  naval  operations  against 
the  other,  or  for  the  purpose  of  the  renewal  or  augmentation  of 
military  supplies  or  arms,  or  the  recruitment  of  men. 

Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters, 
and,  as  to  all  persons  within  its  jurisdiction,  to  prevent  any 
violation  of  the  foregoing  obligations  and  duties. 

Her  Britannic  Majesty  has  commanded  her  High  Commis- 
sioners and  Plenipotentiaries  to  declare  that  Her  Majesty's 
Government  cannot  assent  to  the  foregoing  rules  as  a  statement 
of  principles  of  International  Law  which  were  in  force  at  the 
time  when  the  claims  mentioned  in  Article  I.  arose,  but  that 
Her  Majesty's  Government,  in  order  to  evince  its  desire  of 
strengthening  the  friendly  relations  between  the  two  coun- 
tries and  of  making  satisfactory  provision  for  the  future,  agrees 
that  in  deciding  the  questions  between  the  two  countries  aris- 
ing out  of  those  claims,  the  Arbitrators  should  assume  that  Her 
Majesty's  Government  had  undertaken  to  act  upon  the  prin- 
ciples set  forth  in  these  rules. 

And  the  high  contracting  parties  agree  to  observe  these 
rules  as  between  themselves  in  future,  and  to  bring  them  to 
the  knowledge  of  other  maritime  Powers,  and  to  invite  them  to 
accede  to  them.  —  (Article  VI  of  the  Treaty  of  Washington, 
1871,  between  Great  Britain  and  the  United  States.) 

Note.  —  It  is  impossible  to  say  that  an  agreement  is  declaratory  of 
existing  law  when  one  side  holds  that  it  makes  new  law.  In  this  particular 
case  no  formal  invitation  to  accede  to  the  Rules  was  given  by  Great  Britain 
and  the  United  States  to  the  other  maritime  powers,  partly  because  it  was 
known  that  some  important  European  states  were  not  prepared  to  accept 
them,  and  partly  because  the  two  parties  to  them  were  unable  to  agree  on 
the  meaning  of  certain  clauses  in  them.  But  nevertheless  their  general 
sense  was  embodied  in  the  Hague  Convention  of  1907  on  The  Rights 
and  Duties  of  Neutral  Powers  in  Maritime  War.  But  for  the  phrase 
which  bound  neutral  powers  to  use  "due  diligence"  in  order  to  perform 
certain  duties  was  substituted  the  formula,  "employ  the  means  at  its 
disposal."     (See  pages  310-315.) 


NATURE,  ORIGIN,  AND  DEVELOPMENT  37 

14.   An  Agreement  for  a  New  Rule  between  two 
States  only 

If  war  should  arise  between  the  two  contracting  parties, 
.  .  .  merchant  and  trading  vessels  employed  in  exchanging  the 
products  of  different  places,  and  thereby  rendering  the  neces- 
saries, conveniencies,  and  comforts  of  human  life  more  easy  to 
be  obtained,  and  more  general,  shall  be  allowed  to  pass  free  and 
unmolested;  and  neither  of  the  contracting  Powers  shall  grant 
or  issue  any  commission  to  any  private  armed  vessels,  empower- 
ing them  to  take  or  destroy  such  trading  vessels  or  interrupt 
such  commerce.  —  {Article  XXIII  of  the  Treaty  between  the 
United  States  and  Prussia,  1785.) 

Note.  —  This  Treaty  expired  in  1796,  and  Article  XXIII  has  never 
been  revived. 

15.   Prize  Court  Judges  as  Exponents  of  International 

Law 

In  forming  that  judgment,  I  trust  that  it  has  not  escaped 
my  anxious  recollection  for  one  moment,  what  it  is  that  the 
duty  of  my  station  calls  for  from  me;  —  namely,  to  consider 
myself  as  stationed  here,  not  to  deliver  occasional  and  shifting 
opinions  to  serve  present  purposes  of  particular  national  interest, 
but  to  administer  with  indifference  that  justice  which  the  law 
of  Nations  holds  out,  without  distinction,  to  independent  states, 
some  happening  to  be  neutral  and  some  to  be  belligerent.  The 
seat  of  judicial  authority  is,  indeed,  locally  here,  in  the  bel- 
ligerent country,  according  to  the  known  law  and  practice  of 
nations;  but  the  law  itself  has  no  locality.  It  is  the  duty  of 
the  person  who  sits  here  to  determine  this  question  exactly  as 
he  would  determine  the  same  question  if  sitting  at  Stockholm; 
to  assert  no  pretensions  on  the  part  of  Great  Britain  which  he 
would  not  allow  to  Sweden  in  the  same  circumstances,  and 
to  impose  no  duties  on  Sweden  as  a  neutral  country,  which  he 
would  not  admit  to  belong  to  Great  Britain  in  the  same  char- 
acter. If,  therefore,  I  mistake  the  law  in  this  matter,  I  mistake 
that  which  I  consider,  and  which  I  mean  should  be  considered, 


38  DOCUMENTS  ON  INTERNATIONAL  LAW 

as  the  universal  law  upon  the  question;  a  question  regarding 
one  of  the  most  important  rights  of  belligerent  nations  relatively 
to  neutrals.  —  {Extract  from  Sir  William  Scott's  Judgment  in 
the  Swedish  Convoy  Case,  1  C.  Rob.,  350.) 

16.   Extract  from  a  State  Paper  which  cleared  up  a 
Disputed  Point 

If  a  subject  of  the  King  of  Prussia  is  injured  by  or  has  a  de- 
mand upon  any  person  here,  he  ought  to  apply  to  his  Majesty's 
courts  of  justice,  which  are  open  and  indifferent  to  foreigner 
or  native;  so  vice  versa,  if  a  subject  here  is  wronged  by  a  person 
living  in  the  dominions  of  his  Prussian  Majesty,  he  ought  to 
apply  for  redress  in  the  King  of  Prussia's  courts  of  justice. 

If  the  matter  of  complaint  be  a  capture  at  sea  during  the 
war,  and  the  question  relative  to  prize,  he  ought  to  apply  to 
the  judicatures  established  to  try  these  questions. 

The  Law  of  Nations,  founded  upon  justice,  equity,  conveni- 
ence, and  the  reason  of  the  thing,  and  confirmed  by  long  usage, 
does  not  allow  of  reprisals,  except  in  case  of  violent  injuries, 
directed  or  supported  by  the  state,  and  justice  absolutely 
denied  in  re  minime  duhia  by  all  the  tribunals,  and  afterwards 
by  the  prince.  Where  the  judges  are  left  free  and  give  sentence 
according  to  their  conscience,  though  it  should  be  erroneous, 
that  would  be  no  ground  for  reprisals. 

The  King  of  Prussia  has  engaged  his  royal  word  to  pay  the 
Silesia  debt  to  private  men.  It  is  negotiable,  and  many  parts 
may  have  been  assigned  to  the  subjects  of  other  powers.  It 
will  not  be  easy  to  find  an  instance  where  a  prince  has  thought 
fit  to  make  reprisals  upon  a  debt  due  from  himself  to  private 
men.  There  is  a  confidence  that  this  will  not  be  done.  A 
private  man  lends  money  to  a  prince  upon  the  faith  of  an 
engagement  of  honour,  because  a  prince  cannot  be  compelled, 
like  other  men,  in  an  adverse  way,  in  a  court  of  justice.  So 
scrupulously  did  England,  France  and  Spain  adhere  to  this 
public  faith,  that,  even  during  the  war,  they  suffered  no  enquiry 
to  be  made  whether  any  part  of  the  public  debt  was  due  to  sub- 


NATURE,  ORIGIN,  AND  DEVELOPMENT  39 

jects  of  the  enemy,  though  it  is  certain  manyEnghsh  had  money 
in  the  French  funds,  and  many  French  had  money  in  ours.  — 
(British  Answer  to  the  Prussian  Memorial  on  the  Silesian  Loan 
Question,  1763.) 

17.   Extract  from  a  Domestic  Document  which  influenced 

largely  the  Growth  of  the  International  Law  of 

Land  Warfare 

Section  IV 

81.  Partisans  are  soldiers  armed  and  wearing  the  uniform  of 
their  army,  but  belonging  to  a  corps  which  acts  detached  from 
the  main  body  for  the  purpose  of  making  inroads  into  the  terri- 
tory occupied  by  the  enemy.  If  captured,  they  are  entitled  to 
all  the  privileges  of  the  prisoner  of  war. 

82.  Men,  or  squads  of  men,  who  commit  hostilities,  whether 
by  fighting,  or  inroads  for  destruction  or  plunder,  or  by  raids 
of  any  kind,  without  commission,  without  being  part  and 
portion  of  the  organized  hostile  army,  and  without  sharing 
continuously  in  the  war,  but  who  do  so  Tvath  intermitting 
returns  to  their  homes  and  vocations,  or  with  the  occasional 
assumption  of  the  semblance  of  peaceful  pursuits,  divesting 
themselves  of  the  character  or  appearance  of  soldiers  —  such 
men,  or  squads  of  men,  are  not  public  enemies,  and  therefore, 
if  captured,  are  not  entitled  to  the  privileges  of  prisoners  of 
war,  but  shall  be  treated  summarily  as  highway  robbers  or 
pirates. 

83.  Scouts,  or  single  soldiers,  if  disguised  in  the  dress  of 
the  country,  or  in  the  uniform  of  the  army  hostile  to  their  own, 
employed  in  obtaining  information,  if  found  within  or  lurking 
about  the  lines  of  the  captor,  are  treated  as  spies,  and  suffer 
death. 

84.  Armed  prowlers,  by  whatever  names  they  may  be  called, 
or  persons  of  the  enemies'  territory,  who  steal  within  the  lines 
of  the  hostile  army,  for  the  purpose  of  robbing,  killing,  or  of 
destroying  bridges,  roads,  or  canals,  or  of  robbing  or  destroying 
the  mail,  or  of  cutting  the  telegraph  wires,  are  not  entitled  to 
the  privileges  of  the  prisoner  of  war. 


40  DOCUMENTS  ON  INTERNATIONAL  LAW 

85.  War-rebels  are  persons  within  an  occupied  territory  who 
rise  in  arms  against  the  occupying  or  conquering  army,  or 
against  the  authorities  estabhshecl  by  the  same.  If  captured, 
they  may  suffer  death,  whether  they  rise  singly,  in  small  or 
large  bands,  and  whether  called  upon  to  do  so  by  their  own,  but 
expelled,  government  or  not.  They  are  not  prisoners  of  war; 
nor  are  they,  if  discovered  and  secured  before  their  conspiracy 
has  matured  to  an  actual  rising,  or  to  armed  violence.  — 
{Instructions  for  the  Government  of  Armies  of  the  United  States 
in  the  Field,  1863.) 

Note.  —  The  Instructions,  a  few  Articles  of  which  are  given  above, 
were  drawn  up  by  Dr.  Francis  Lieber,  and  issued  to  the  Federal  armies  in 
the  American  Civil  War  by  the  Government  of  the  United  States  in  1863. 
When  in  1874  an  European  Congress  met  at  Brussels  to  discuss  the  laws 
of  land  warfare,  Dr.  Lieber's  Instructions  were  freely  drawn  upon  in  the 
Declaration  the«  adopted.  Though  this  Declaration  was  never  ratified, 
its  form  and  matter  influenced  very  largely  the  composition  of  the  Regie- 
merit  annexed  to  the  Convention  concerning  the  Laws  and  Customs  of 
War  on  Land  drawn  up  at  the  Hague  in  1899,  and  revised  in  1907.  Thus 
the  work  of  a  private  citizen,  adopted  by  his  government,  had  a  marked 
influence  in  shaping  the  great  Code  of  Land  Warfare  which  has  now  been 
accepted  by  most  civilized  nations.     (See  pages  182-194.) 


PART    II 

DOCUMENTS  ILLUSTRATING  QUESTIONS  CON- 
NECTED  WITH   THE   LAW 
OF   PEACE 

1.   Voluntary  Restrictions  on  State  Action 

Great  Britain  and  the  United  States  in 
Central  America 

Article  I 

The  Governments  of  the  United  States  and  Great  Britain 
hereby  declare  that  neither  the  one  nor  the  other  will  ever 
obtain  or  maintain  for  itself  any  exclusive  control  over  the  said 
ship-canal;  agreeing  that  neither  will  ever  erect  or  maintain 
any  fortifications  commanding  the  same,  or  in  the  vicinity 
thereof,  or  occupy,  or  fortify,  or  colonize,  or  assume  or  exercise 
any  dominion  over  Nicaragua,  Costa  Rica,  the  Mosquito  coast, 
or  any  part  of  Central  America;  nor  will  either  make  use  of  any 
protection  which  either  affords  or  may  afford,  or  any  alliance 
which  either  has  or  may  have  to  or  with  any  State  or  people 
for  the  purpose  of  erecting  or  maintaining  any  such  fortifica- 
tions, or  of  occupying,  fortifying  or  colonizing  Nicaragua,  Costa 
Rica,  the  Mosquito  coast,  or  any  part  of  Central  America,  or  of 
assuming  or  exercising  dominion  over  the  same;  nor  will  the 
United  States  or  Great  Britain  take  advantage  of  any  intimacy, 
or  use  any  alliance,  connection,  or  influence  that  either  may 
possess,  with  any  State  or  Government  through  whose  territory 
the  said  canal  may  pass,  for  the  purpose  of  acquiring  or  holding, 
directly  or  indirectly,  for  the  citizens  or  subjects  of  the  one 
any  rights  or  advantages  in  regard  to  commerce  or  navigation 
through  the  said  canal  which  shall  not  be  offered  on  the  same 
terms  to  the  citizens  or  subjects  of  the  other.  —  {Article  I  of 
the  Clayton-Bulwer  Treaty,  1850.) 


42  DOCUMENTS  ON  INTERNATIONAL  LAW 

2.   Voluntary  Restrictions  on  State  Action 

British  and  German  Spheres  of  Action  in  the 
Western  Pacific 

The  Government  of  Her  Majesty  the  Queen  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  and  the  Government  of 
His  Majesty  the  German  Emperor,  having  resolved  to  define 
the  limits  of  the  British  and  German  spheres  of  influence  in 
the  Western  Pacific; 

The  undersigned,  duly  empowered  for  that  purpose,  viz:  — 

1.  Sir  Edward  Baldwin  Malet,  Her  Britannic  Majesty's 
Ambassador  Extraordinary  and  Plenipotentiary; 

2.  Count  Herbert  Bismark,  His  Imperial  Majesty's  Under- 
Secretary  of  State  for  Foreign  Affairs; 

have  agreed,  on  behalf  of  their  respective  Governments,  to 
make  the  folloAving  Declaration :  — 

1.  For  the  purpose  of  this  Declaration  the  expression 
"Western  Pacific"  means  that  part  of  the  Pacific  Ocean  lying 
between  the  15th  parallel  of  north  latitude  and  the  30th  parallel 
of  south  latitude,  and  between  the  165th  meridian  of  longitude 
west  and  the  130th  meridian  of  longitude  east  of  Greenwich. 

2.  A  Conventional  line  of  demarcation  in  the  Western 
Pacific  is  agreed  to,  starting  from  the  north-east  coast  of  New 
Guinea,  at  a  point  near  Nitre  Rock,  on  the  8th  parallel  of  south 
latitude,  being  the  boundary  between  the  British  and  German 
Possessions  on  that  Coast,  and  following  that  parallel  to  point 
A,  and  thence  continuing  to  points  B,  C,  D,  E,  F,  and  G,  as  in- 
dicated in  the  accompanying  Charts,  which  points  are  situated 
as  follows: —  (Here  follow  a  number  of  nautical  directions.) 

3.  Germany  engages  not  to  make  acquisitions  of  territory, 
accept  Protectorates,  or  interfere  with  the  extension  of  British 
influence,  and  to  give  up  any  acquisitions  of  territory  or  Pro- 
tectorates already  established  in  that  part  of  the  Western 
Pacific  lying  to  the  east,  south-east,  or  south  of  the  said  Con- 
ventional line. 

4.  Great  Britain  engages  not  to  make  acquisitions  of  terri- 
tory, accept  Protectorates,  or  interfere  with  the  extension  of 


THE  LAW  OF  PEACE  43 

German  influence,  and  to  give  up  any  acquisitions  of  territory 
or  Protectorates  already  established  in  that  part  of  the  Western 
Pacific  lying  to  the  west,  north-west,  or  north  of  the  said 
Conventional  line. 

5.  Should  further  surveys  show  that  any  islands,  now  indi- 
cated on  the  said  Charts  as  lying  on  one  side  of  the  said  Con- 
ventional line,  are  in  reahty  on  the  other  side,  the  said  line  shall 
be  modified  so  that  such  islands  shall  appear  on  the  same  side 
of  the  line  as  at  present  shown  on  the  said  Charts. 

6.  This  Declaration  does  not  apply  to  the  Navigator  Islands 
(Samoa),  which  are  affected  by  Treaties  with  Great  Britain, 
Germany,  and  the  United  States;  not  to  the  Friendly  Islands 
(Tonga),  which  are  affected  by  Treaties  with  Great  Britain  and 
Germany;  nor  to  the  Island  of  Nine  (Savage  Island),  which 
groups  of  Islands  shall  continue  to  form  a  neutral  region;  nor 
to  any  islands  or  places  in  the  Western  Pacific  which  are  now 
under  the  sovereignty  or  protection  of  any  other  civilized  Power 
than  Great  Britain  or  Germany. 

Declared  and  signed  in  duplicate  at  Berlin,  this  sixth  day  of 
April,  one  thousand  eight  hundred  and  eighty  six.  —  {Declara- 
tion of  April  6th,  1886.) 

3.   Restrictions  on  State  Action  Imposed  by  Superior 
Force 

Russia  and  Turkey  in  the  Black  Sea 

Article  XIII 

The  Black  Sea  being  neutralised  according  to  the  terms  of 
Article  XI,  the  maintenance  or  establishment  upon  its  coast 
of  miUtary-maritime  arsenals  becomes  ahke  unnecessary  and 
purposeless;  in  consequence,  His  Majesty  the  Emperor  of  all 
the  Russias  and  His  Imperial  Majesty  the  Sultan  engage  not 
to  estabhsh  or  to  maintain  upon  that  coast  any  mihtary-mari- 
time  arsenal.  —  {Treaty  of  Paris,  1856.) 

Note.  —  This  Article  was  abrogated  by  Article  I  of  the  Treaty  of 
London,  1871,  the  parties  to  which  are  the  six  Great  Powers  of  Europe  and 
Tiukey. 


M  DOCUMENTS  ON  INTERNATIONAL  LAW 

4.    Intervention  of  the  United  States  in  Cuba 

Last  August  an  insurrection  broke  out  in  Cuba  which  it 
speedily  grew  evident  that  the  existing  Cuban  Government 
was  powerless  to  quell.  This  Government  was  repeatedly  asked 
by  the  then  Cuban  Government  to  intervene,  and  finally  was 
notified  by  the  President  of  Cuba  that  he  intended  to  resign; 
that  his  decision  was  irrevocable;  that  none  of  the  other  con- 
stitutional officers  would  consent  to  carry  on  the  Government, 
and  that  he  was  powerless  to  maintain  order.  It  was  evident 
that  chaos  was  impending,  and  there  was  every  probability 
that  if  steps  were  not  immediately  taken  by  this  Government 
to  try  to  restore  order,  the  representatives  of  various  European 
nations  in  the  island  would  apply  to  their  respective  govern- 
ments for  armed  intervention  in  order  to  protect  the  lives  and 
property  of  their  citizens.  Thanks  to  the  preparedness  of  our 
Navy,  I  was  able  immediately  to  send  enough  ships  to  Cuba 
to  prevent  the  situation  from  becoming  hopeless ;  and  I  further- 
more despatched  to  Cuba  the  Secretary  of  War  and  the  Assistant 
Secretary  of  State,  in  order  that  they  might  grapple  with  the 
situation  on  the  ground.  All  efforts  to  secure  an  agreement 
between  the  contending  factions,  by  which  they  should  them- 
selves come  to  an  amicable  understanding  and  settle  upon  some 
modus  Vivendi  —  some  provisional  government  of  their  own  — 
failed.  Finally  the  President  of  the  Republic  resigned.  The 
quorimi  of  Congress  assembled  failed  by  deliberate  purpose  of 
its  members,  so  that  there  was  no  power  to  act  on  his  resigna- 
tion, and  the  Government  came  to  a  halt.  In  accordance  with 
the  so-called  Piatt  amendment,  which  was  embodied  in  the 
constitution  of  Cuba,  I  thereupon  proclaimed  a  provisional 
government  for  the  Island,  the  Secretary  of  War  acting  as 
provisional  governor  until  he  could  be  replaced  by  Mr.  Magoon, 
the  late  minister  to  Panama  and  governor  of  the  Canal  Zone 
on  the  Isthmus;  troops  were  sent  to  support  them  and  to  relieve 
the  Navy,  the  expedition  being  handled  with  most  satisfactory 
speed  and  efficiency.  The  insurgent  chiefs  immediately  agreed 
that  their  troops  should  lay  down  their  arms  and  disband; 


THE  LAW  OF  PEACE  45 

and  the  agreement  was  carried  out.  The  provisional  govern- 
ment has  left  the  personnel  of  the  old  government  and  the  old 
laws,  so  far  as  might  be,  unchanged,  and  will  thus  administer 
the  island  for  a  few  months  until  tranquilHty  can  be  restored, 
a  new  election  properly  held,  and  a  new  government  inaugu- 
rated. Peace  has  come  in  the  island;  and  the  harvesting  of 
the  sugar-cane  crop,  the  great  crop  of  the  island,  is  about  to 
proceed. 

When  the  election  has  been  held  and  the  new  goverimient 
inaugurated  in  peaceful  and  orderly  fashion  the  provisional 
government  will  come  to  an  end.  I  take  this  opportunity  of 
expressing  upon  behalf  of  the  American  people,  with  all  possible 
solemnity,  our  most  earnest  hope  that  the  people  of  Cuba  will 
realize  the  imperative  need  of  preserving  justice  and  keeping 
order  in  the  island.  The  United  States  wishes  nothing  of  Cuba 
except  that  it  shall  prosper  morally  and  materially,  and  wishes 
nothing  of  the  Cubans  save  that  they  shall  be  able  to  preserve 
their  independence.  If  the  elections  become  a  farce,  and  if  the 
insurrectionary  habit  becomes  confirmed  in  the  Island,  it  is 
absolutely  out  of  the  question  that  the  Island  should  continue 
independent;  and  the  United  States,  which  has  assumed  the 
sponsorship  before  the  civiHzed  world  for  Cuba's  career  as  a 
nation,  would  again  have  to  intervene  and  to  see  that  the  govern- 
ment was  managed  in  such  orderly  fashion  as  to  secure  the 
safety  of  life  apd  property.  The  path  to  be  trodden  by  those 
who  exercise  self-government  is  always  hard,  and  we  should 
have  every  charity  and  patience  with  the  Cubans  as  they  tread 
this  difficult  path.  I  have  the  utmost  sympathy  with,  and 
regard  for,  them;  but  I  most  earnestly  adjure  them  solemnly  to 
weigh  their  responsibilities  and  to  see  that  when  their  new 
govermnent  is  started  it  shall  run  smoothly,  and  with  freedom 
from  flagrant  denial  of  right  on  the  one  hand,  and  from  insur- 
rectionary disturbances  on  the  other.  —  (Message  of  President 
Roosevelt,  Dec.  3,  1906.) 


46  DOCUMENTS  ON   INTERNATIONAL  LAW 

5.   Intervention  on  the  Ground  of  Humanity 

Greece  and  Turkey,  1827 

The  case  of  Greece  is  precisely  similar  to  that  of  Belgium, 
Greece  never  achieved  a  de  facto  independence;  on  the  con- 
trary, at  the  moment  of  the  European  intervention,  the  Greek 
patriots  were  on  the  point  of  succumbing.  The  European  Powers 
ditl  not  recognise,  they  saved  Greece.  As  a  matter  of  European 
policy,  they  thought  fit  to  act  in  a  manner  decidedly  hostile 
towards  Turkey.  The  battle  of  Navarino  may  have  been  an 
"untoward  event,"  but  it  was  the  natural  and  almost  inevitable 
consequence  of  a  forcible  intervention  to  prevent  the  Turkish 
Government  from  reducing  its  subjects  to  submission.  The 
emancipation  of  Greece,  effected  by  Europe,  was  a  high  act  of 
poUcy  above  and  beyond  the  domain  of  law.  As  an  act  of  policy, 
it  may  have  been,  and  probably  was,  justifiable;  but  it  was  not 
the  less  a  hostile  act,  which,  if  she  had  dared,  Turkey  might 
properly  have  resented  by  war.  —  (Letters  of  Historicus,  I.) 

6.    Intervention  to  end  Illegal  Intervention 

The  United  States,  France,  and  Mexico 

Secret  Diplomacy 

In  November,  1865,  I  went  to  Paris,  at  the  solicitation  of  the 
Emperor  Napoleon,  breakfasted  with  him,  and  after  breakfast 
spent  two  hours  and  a  half  with  him  in  his  cabinet,  during  which 
period  he  made  with  me  a  secret  treaty,  subject  to  the  approval 
of  the  President,  by  which  he  agreed  to  withdraw  his  army  from 
Mexico,  in  twelve,  eighteen,  and  twenty-four  months;  and  on 
that  occasion  I  also  arranged  for  the  purchase  of  French  Guiana, 
and  placed  in  Mr.  Seward's  hands  the  terms  of  purchase  fixed 
by  the  French  minister  of  foreign  affairs.  The  arrangement  in 
regard  to  Mexico  was  approved  by  the  President;  and  I  so 
informed  the  Emperor.  One  of  the  conditions  of  that  arrange- 
ment was,  it  should  be  considered  a  profound  secret,  and  not  to 
be  made  known  to  our  minister  in  Paris,  or  even  to  the  French 


THE  LAW  OF  PEACE  47 

minister  of  foreign  affairs,  until  the  Emperor  should  make  the 
annunciation  in  the  Moniteur  in  the  following  April.  At  the 
soUcitation  of  Marshal  Niel,  however,  who,  when  he  was  ad- 
vised of  the  arrangement,  declared  it  to  be  unsafe  to  try  to 
evacuate  Mexico  in  separate  detachments,  and  insisted  that 
the  whole  army  must  be  removed  at  once,  the  Emperor  subse- 
quently gave  us  notice  that  he  would  retire  from  Mexico  in 
March,  1867,  sixteen  months  from  the  time  of  our  arrange- 
ment, instead  of  twelve,  eighteen,  and  twenty-four  months, 
and  this  he  did  in  good  faith.  —  (Letter  of  General  J.  W.  Webb, 
in  Moore's  International  Law  Digest,  vol  VI,  p.  504.) 

Note.  —  It  appears  that  President  Johnson  declined  to  purchase 
French  Guiana,  and  the  Emperor  decHned  to  sell  instead  the  island  of 
Martinique  or  the  island  of  S*  Pierre.  This  part  of  the  bargain,  therefore, 
fell  through. 

7.    Intervention  to  put  down  Revolution 

The  Holy  Alliance  Treaty  of  1815 

Their  Majesties  the  Emperor  of  Austria,  the  King  of  Prussia 
and  the  Emperor  of  Russia,  as  a  consequence  of  the  great 
events  which  have  signaUzed,  in  Europe,  the  course  of  the  last 
three  years,  and  principally  of  the  benefits  which  it  has  pleased 
Divine  Providence  to  spread  over  the  States  whose  govern- 
ments have  placed  their  trust  and  hope  in  Him  alone,  having 
acquired  the  complete  conviction  that  it  is  necessary  to  base 
the  system  to  be  adopted  by  the  States  in  their  mutual  relations 
upon  the  sublime  truths  taught  by  the  eternal  reUgion  of  the 
Holy  Saviour; 

Declare  solemnly,  that  the  present  instrument  has  only  for 
its  object  to  manifest  before  all  the  world  their  invincible  de- 
termination to  take  for  their  rule  of  conduct,  whether  in  the 
administration  of  their  respective  States,  or  in  their  political 
relations  with  other  governments,  none  but  the  precepts  of  that 
holy  rehgion,  precepts  of  justice,  of  charity,  and  of  peace;  which, 
far  from  being  applicable  only  to  private  life,  ought,  on  the 
contrary,  to  have  a  direct  influence  on  the  resolves  of  princes, 
and  to  guide  all  their  steps,  as  being  the  sole  method  of  strength- 


48  DOCUMENTS  ON  INTERNATIONAL  LAW 

ening  human  institutions  and  remedying  their  imperfections. 
In  consequence,  their  majesties  have  agreed  to  the  following 
articles :  — 

Article  I.  Conformably  to  the  words  of  the  Holy  Scriptures, 
which  command  all  men  to  look  upon  each  other  as  brethren, 
the  three  contracting  monarchs  will  remain  united  by  the  bonds 
of  a  real  and  indissoluble  brotherhood;  and  considering  them- 
selves as  members  of  one  country,  they  will  afford  each  other, 
on  every  occasion  and  in  every  place,  assistance,  aid,  and  suc- 
cour: looking  upon  themselves  with  regard  to  their  subjects 
and  their  armies,  as  fathers  of  a  family,  they  will  govern  them 
in  that  spirit  of  brotherhood  with  which  they  are  animated 
for  the  protection  of  religion,  peace,  and  justice. 

Article  II.  In  consequence,  the  only  principles  in  force, 
whether  between  the  said  sovereigns  or  between  their  subjects, 
shall  be  that  of  reciprocally  doing  each  other  good ;  of  testifying, 
by  unalterable  good-will,  the  mutual  affection  with  which  they 
ought  to  be  animated;  of  considering  all  men  only  as  members 
of  the  same  Christian  nation,  the  three  allied  princes  only 
regarding  themselves  as  delegated  by  Providence  to  govern 
three  branches  of  the  same  family,  namely,  Austria,  Prussia, 
and  Russia:  confessing  thus  that  the  Christian  nation,  of  which 
they  and  their  people  are  a  part,  has  in  reality,  no  other  Sovereign 
than  He  to  whom  power  properly  belongs,  because  in  Him  alone 
are  found  the  treasures  of  love,  of  knowledge,  and  of  infinite 
wisdom,  that  is  to  say,  God,  our  Divine  Saviour  Jesus  Christ, 
the  Word  of  the  most  High,  the  AVord  of  Life.  Their  majesties 
recommend  in  consequence  to  their  people,  with  the  most  tender 
solicitude,  as  the  sole  method  of  enjoying  that  peace  which 
arises  from  a  good  conscience,  and  which  alone  is  durable,  to 
strengthen  themselves  more  and  more  each  day  in  those  prin- 
ciples, and  in  the  exercise  of  those  duties  which  the  Divine 
Saviour  has  taught  mankind. 

Article  III.  All  those  powers  that  may  desire  to  make  a 
solemn  avowal  of  the  sacred  principles  which  have  dictated 
the  present  act,  and  that  \vill  acknowledge  how  important  it  is 
to  the  happiness  of  nations,  too  long  disturbed,  that  these 


THE  LAW  OF  PEACE  49 

truths  shall  henceforth  exercise  on  human  destiny  all  the  influ- 
ence which  is  their  due,  shall  be  received  with  equal  earnestness 
and  affection  into  this  Holy  AUiance. 

Note.  —  The  general  terms  of  this  treaty  were  soon  interpreted  as 
a  condemnation  of  all  popular  movements  in  favour  of  political  freedom. 
At  the  Congress  of  Troppau  in  1820  the  Ministers  of  Russia  and  Prussia 
put  forth  a  joint  circular,  explaining  that,  while  the  Holy  AUiance  was 
not  hostile  to  reforms  proceeding  from  the  voluntary  action  of  Sovereigns, 
it  was  determined  to  put  down  violence  and  revolution.  Next  year  the 
Sovereigns  assembled  at  the  Congress  of  Laybach  proclaimed  in  a  circular 
despatch  that  they  would  regard  as  null  and  disallowed  by  the  pubUc 
law  of  EurojDe  any  pretended  reform  effected  by  revolt  and  open  force. 
In  pursuance  of  these  ideas  the  Alliance  interfered  in  Spain,  Naples  and 
other  States,  and  would  have  extended  its  operations  to  Central  and  South 
America,  had  it  not  been  checked  by  the  concerted  opposition  of  George 
Canning,  the  briUiant  Foreign  Minister  of  Great  Britain,  and  James 
Monroe,  the  President  of  the  United  States. 


8.   A  Freehand  for  England  in  Egypt  set  off  Against  a 
Freehand  for  France  in  Morocco 

Article  1.  The  Government  of  his  Britannic  Majesty  declares 
that  it  has  not  the  intention  of  changing  the  poUtical  state  of 
Egypt. 

On  its  side,  the  Government  of  the  French  Repubhc  declares 
that  it  will  not  impede  the  action  of  England  in  this  country 
by  demanding  that  a  term  should  be  fixed  for  the  British  occu- 
pation or  in  any  other  way,  and  that  it  gives  its  adhesion  to  the 
draft  of  the  Khedivial  Decree  which  is  appended  to  the  present 
document,  and  which  contains  the  guarantees  considered  neces- 
sary for  the  safeguard  of  the  interests  of  the  holders  of  the  Egyp- 
tian Debt,  but  on  condition  that  after  the  enforcement  of  the 
Decree  no  modification  will  be  allowed  to  be  introduced  without 
the  assent  of  the  signatory  Powers  to  the  Convention  of  London 
of  1885. 

It  is  agreed  that  the  general  direction  of  Egyptian  antiquities 
will  continue  to  be,  as  in  the  past,  entrusted  to  a  French  savant. 
The  French  schools  in  Egypt  will  continue  to  enjoy  that  same 
liberty  as  in  the  past. 


50  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  2.  The  Govermnent  of  the  French  Republic  declares 
that  it  has  not  the  intention  of  changing  the  political  state  of 
Morocco. 

On  its  side,  the  Government  of  his  Britannic  Majesty  recog- 
nises that  it  appertains  to  France,  notably  as  the  Power 
co-termiuous  to  Morocco  over  a  vast  area,  to  watch  over  the 
tranquillity  of  this  country,  and  to  lend  it  her  assistance  for  all 
administrative,  economic,  financial,  and  MiUtary  reforms  which 
it  requires. 

It  declares  that  it  will  not  impede  the  action  of  France  in 
this  respect,  with  the  reservation  that  this  action  will  leave 
intact  the  rights  which,  in  virtue  of  Treaties,  Conventions,  and 
usage,  Great  Britain  enjoys  in  Morocco,  including  the  right  to 
engage  in  coasting  trade  between  Moorish  ports  from  which 
British  ships  have  benefited  since  1901. 

Article  3.  The  Government  of  his  Britannic  Majesty,  on  its 
side,  will  respect  the  rights  which,  by  virtue  of  Treaties,  Con- 
ventions and  usage,  France  enjoys  in  Egypt,  including  the  right  of 
coasting  trade  accorded  to  French  ships  between  Egyptian  ports. 

Article  4-  The  two  Goverimients,  equally  attached  to  the 
principle  of  commercial  liberty  as  much  in  Egypt  as  in  Morocco, 
declare  that  they  will  lend  themselves  in  neither  country  to  any 
inequality,  either  in  the  estabhshment  of  Customs  duties  or 
other  taxes,  or  in  the  establishment  of  railway  rates. 

The  trade  of  both  nations  with  Morocco  and  Egypt  will 
enjoy  the  same  treatment  as  regards  transit  through  French 
and  British  Possessions  in  Africa.  An  Agreement  between  the 
two  Goverrmients  will  regulate  the  conditions  of  this  transit 
and  Avill  determine  the  points  of  entry. 

This  reciprocal  engagement  holds  good  for  a  period  of  thirty 
years.  Failing  an  express  denunciation  made  at  least  a  year  in 
advance,  this  period  will  be  prolonged  for  successive  periods  of 
five  years. 

However,  the  Government  of  the  French  Repubhc  in  Morocco 
and  the  Government  of  his  Britannic  Majesty  in  Egypt  reserve 
to  themselves  the  right  of  seeing  that  road,  railway,  and  harbour 
concessions,  etc.,  are  granted  under  conditions  such  that  the 


THE  LAW  OF  PEACE  51 

authority  of  the  State  over  these  great  enterprises  of  general 
interest  remains  entire. 

Article  5.  The  Government  of  his  Britannic  Majesty  declares 
that  it  will  use  its  influence  in  such  a  way  that  French  officials 
at  present  in  the  Egyptian  service  shall  not  be  placed  in  less 
advantageous  conditions  than  those  appUed  to  English  Officials 
in  the  same  service. 

The  Goverrmient  of  the  French  Republic,  on  its  side,  will  not 
object  to  similar  conditions  being  conceded  to  the  British 
officials  at  present  in  the  Moorish  service. 

Article  6.  In  order  to  insure  the  free  passage  of  the  Suez 
Canal,  the  Govermnent  of  his  Britannic  Majesty  declares  its 
adherence  to  the  stipulations  of  the  Treaty  concluded  on  Oct.  29, 
1888,  and  to  their  enforcement.  The  free  passage  of  the  Canal 
being  thus  guaranteed,  the  execution  of  the  last  sentence  of 
Paragraph  1  and  that  of  Paragraph  2  of  Article  8  of  this  Treaty 
will  remain  suspended. 

Article  7.  In  order  to  insure  the  free  passage  of  the  Straits 
of  Gibraltar,  both  Governments  agree  not  to  allow  fortifications 
or  any  strategic  works  to  be  erected  on  that  part  of  the  Moorish 
coast  between  MeUlla  and  the  heights  which  dominate  the  right 
bank  of  the  Sebu  exclusively.  Nevertheless,  this  arrangement 
does  not  apply  to  the  points  now  occupied  by  Spain  on  the 
Moorish  shore  of  the  Mediterranean. 

Article  8.  The  two  Governments,  animated  by  their  sin- 
cerely friendly  sentiments  for  Spain,  take  into  particular  con- 
sideration the  interests  she  possesses  owing  to  her  geographical 
position,  and  to  her  territorial  possessions  on  the  Moorish 
shore  of  the  Mediterranean;  and  in  regard  to  which  the  French 
Government  will  make  some  arrangements  with  the  Spanish 
Government. 

The  Agreement,  which  may  be  reached  on  this  subject 
between  France  and  Spain,  will  be  communicated  to  the 
Government  of  his  Britannic  Majesty. 

Article  9.  The  two  Governments  agree  to  lend  each  other 
the  support  of  their  Diplomacy  for  the  execution  of  the  clauses 
of  the  present  Declaration  relative  to  Egypt  and  Morocco. 


52  DOCUMENTS  ON  INTERNATIONAL  LAW 

In  witness  whereof  his  Excellency  the  Ambassador  of  the 
French  Repubhc  to  his  Majesty  the  King  of  the  United  King- 
dom of  Great  Britain  and  Ireland,  and  of  the  British  Domin- 
ions beyond  the  Seas,  Emperor  of  India,  and  the  Principal 
Secretary  of  State  for  Foreign  Affairs  of  his  Britannic  Majesty, 
duly  authorised  for  that  purpose,  have  signed  the  present 
Declaration  and  have  affixed  their  seals  to  it.  —  {Agreement 
between  Great  Britain  and  France,  April  8,  1904.) 

9.    Dominion  over  the  Air 

Report  of  the  Committee  on  Aviation  of  the 
International  Law  Association,  1913 

Owing  to  the  somewhat  late  date  at  which  the  Committee 
was  finally  constituted  and  the  Convener  nominated,  it  has  not 
been  possible  to  send  out  any  Questionnaire,  and  the  labours 
of  the  Committee  have  therefore  been  confined  to  an  examination 
of  the  usage  of  nations  and  of  the  views,  so  far  as  possible, 
already  pronounced  of  various  leading  jurists  in  reference  to 
the  law  of  the  air  space  in  different  countries,  with  a  view  to 
seeing  if  any  general  principle  can  be  arrived  at  for  laying  down 
the  basis  of  an  international  convention  or  code,  or  if  it  would 
be  more  practical  for  purposes  of  an  international  code  to  con- 
sider the  question  from  the  point  of  view  only  of  the  usage  of 
the  air  space. 

Now  in  considering  the  question  of  an  international  code  of  the 
air  —  that  is  of  the  air  space  —  it  is  certain  that  no  satisfactory 
result  can  ensue  unless  a  clear  agreement  is  first  come  to  as  to 
the  fundamental  basis  on  which  that  code  is  to  be  built  up. 

This  basis  has  not  yet  been  agreed,  a  large  number  of  divergent 
views  having  been  put  forward  and  ably  supported  by  various 
schools  of  jurists  in  different  countries. 

The  first  point  which  naturally  arises  for  consideration  is: 
To  whom  does  the  air  space  over  a  subjacent  State  belong?  or, 
as  of  what  nature  is  such  air  space  to  be  considered?  for  it  is 
in  the  answer  to  this  that  a  solution  of  the  difficulty  is  Ukely 
to  be  found. 


THE  LAW  OF  PEACE  53 

On  this  point,  broadly  speaking,  there  are  two  main  schools 
of  thought: 

1.  Those  who  maintain  that  the  air  space  is  of  its  nature 
free;  this  theory  being  that  of  the  freedom  of  the  air  space. 

2.  Those  who  maintain  the  theory  of  the  sovereignty  of  the 
subjacent  State  in  the  air  space  above  its  territory. 

The  first  school  may  again  be  divided  into  partisans  of: 

(a)  Air  freedom  without  restriction. 

(6)  Air    freedom    restricted  by  some  special  rights   (not 

hmited  as  regards  height)  of  the  subjacent  State. 
(c)   Air  freedom  restricted  by  a  territorial  zone. 

Those  who  maintain  the  sovereignty  theory  may  also  be 
subdivided  into  partisans  of: 

(a)  Full  sovereignty  without  any  restriction. 

(b)  Full  sovereignty  restricted  by  the  right  of  innocent 

passage  for  aerial  navigation. 

(c)  Full  sovereignty  up  to  a  limited  height  only. 

The  various  parties  holding  these  separate  views  have  never 
yet  come  to  any  agreement  between  themselves. 

It  is  for  this  reason  that  Dr.  Fauchille,  who  for  the  rest  is 
an  ardent  partisan  of  the  freedom  theory,  although  he  would 
reserve  to  the  subjacent  State  the  rights  necessary  for  its 
preservation,  has  suggested  that  the  most  practical  way  of 
solving  the  difficulty  is  simply  to  deal  with  the  right  of  "usage" 
of  the  air  space  without  laying  down  any  proposition  as  to 
sovereignty  or  otherwise  in  the  air  space. 

We  have  every  desire  to  facihtate  an  agreement  as  to  usage, 
but  we  doubt  whether  any  agreement  can  be  practical  which  is 
based  on  an  avoidance  of  the  real  point  at  issue.  We  therefore 
think  it  right  to  place  on  record  the  opinion  we  have  formed  on 
that  point. 

Now  if  the  several  views  above  mentioned  put  forward  by 
the  various  groups  of  writers  who  are  partisans  of  air  freedom 
are  analysed  we  are  at  once  struck  by  the  fact  that  nearly  all 


54  DOCUMENTS  ON  INTERNATIONAL  LAW 

of  them  admit  that  the  subjacent  State  has  certain  rights  neces- 
sary for  its  protection,  and  that  of  its  inhabitants  and  their 
property,  and  that  the  argument  for  air  freedom  is  a  purely 
academic  one  based  on  the  principle  that  the  air  (not  the  air 
space  —  hence  much  confusion  of  thought)  is  free  and  not  sus- 
ceptible of  appropriation.  And  if  the  reasons  in  support  of  the 
air  freedom  are  examined  a  little  more  closely  it  will  be  found 
that,  though  they  also  make  an  appeal  on  what  are  considered 
practical  considerations  of  modern  needs  of  international  inter- 
course, they  are  largely  founded  on  the  fear  that,  unless  free- 
dom is  asserted  and  conceded,  States  may  close,  or  attempt  to 
close,  their  atmosphere  to  air  traffic.  For  reasons  which  are 
presently  stated  we  do  not  apprehend  that  any  such  result  will 
follow  from  the  acceptance  of  the  principle  of  air  sovereignty. 

The  Comite  Juridique  International  d^ Aviation  at  its  Paris 
Congress  held  in  May,  1911,  and  the  Institut  de  Droit  Inter- 
national at  its  Madrid  meeting  in  1911  have  adopted  the  fol- 
lowing resolution  on  the  subject: 

"Aerial  circulation  is  free  save  the  right  of  subjacent  States 
to  take  certain  measures  to  be  determined  with  a  view 
to  their  own  security  and  that  of  the  persons  and  prop- 
erty of  their  inhabitants." 

When,  however,  this  is  examined  it  does  not  really  carry  the 
matter  much  further  and  does  not  appear  to  us  to  provide  any 
practical  solution  of  the  difficulty. 

If  the  "certain  measures"  which  a  subjacent  State  may  take 
are  to  be  determined  on  its  own  sole  authority  and  discretion 
the  resolution  gives  power  which  does  not  in  fact  stop  short  of 
absolute  sovereignty;  but  if  the  "measures"  which  may  be 
taken  are  only  to  be  such  as  are  to  be  agreed  between  States 
or  such  as  may  be  held  by  some  tribunal  to  be  necessary,  then 
confusion  and  conflict  seem  unavoidable. 

The  adoption  of  the  principle  of  free  circulation  seems  to  us, 
therefore,  necessarily  to  lead  to  a  code  which  must  be  full  of 
exceptions  and  must  create  endless  difficulties  without  any 
corresponding  advantage. 


THE  LAW  OF  PEACE  55 

On  the  general  question  an  examination  of  recent  discussions 
has  convinced  us  that  the  opinion  of  statesmen  and  jurists  is 
more  and  more  coming  to  accept  the  view  of  full  sovereignty. 

And  if  we  turn  to  the  more  important  consideration  of  the 
usage  of  nations  we  find  that  it  is  consistent  only  wath  the  same 
view.  Legislation  in  those  countries  where  legislation  has  taken 
place  is  based  on  the  principle  of  full  sovereignty. 

The  English  Aerial  Navigation  Acts,  1911  and  1913  assume 
full  sovereign  rights,  and  recent  legislation  in  France  and  Rus- 
sia rests  on  the  same  assumption:  while  the  Franco-German 
Convention  regulating  air  traffic,  which  is  stated  in  the  Press 
to  have  been  recently  concluded,  admits  the  same  principle  in 
"authorising"  civil  aerial  circulation  in  each  country  subject 
to  certain  concUtions,  and  in  allowing  to  each  country  the  right 
of  making  such  regulations  as  it  pleases  relative  thereto. 

Further,  the  law  of  private  rights  of  most  civihsed  countries 
confers  property,  with  certain  restrictions  in  some  cases,  in 
the  air  space  above  the  land  of  the  landowner.  It  is  a  rule  of 
the  English  Common  Law,  which  also  obtains  generally  in  the 
United  States  of  America.  It  is  embodied  in  the  Code  Napoleon, 
in  the  Codes  of  Germany,  Switzerland,  Italy,  the  Netherlands, 
Belgium,  Spain,  Portugal,  Austria,  Japan,  Turkey  and  in  the 
Statutes  of  at  least  one  (Connecticut)  of  the  United  States  of 
America.  This  shows  that  the  principle  of  State  sovereignty 
over  the  whole  air  space  has  been  generally  recognised  by  civil- 
ised nations,  for  of  course  the  admission  of  the  rights  of  private 
owners  "usque  ad  coelum"  involves  the  assertion  of  State 
sovereignty  to  the  same  extent. 

It  appears  to  the  Committee  impossible  to  contend  that  ac- 
cording to  existing  International  Law  the  air  space  is  free;  nor 
do  they  think  that  States  would  be  willing  to  accept  or  to  act 
on  that  view  of  the  law.  But  they  are  of  opinion  that  subject 
to  such  safeguards  as  subjacent  States  may  think  it  right  to 
impose,  aerial  navigation  should  be  permitted  as  a  matter  of 
comity. 

There  is  no  reason  to  anticipate  that  States  will  interfere 
with  the  passage  of  foreign  airships  through  the  air  above  their 


5G  DOCUMENTS  ON  INTERNATIONAL  LAW 

territories  in  an  unreasonable  manner,  any  more  than  they  have 
interfered  with  the  passage  of  foreign  vehicles  through  their 
territories  or  of  foreign  vessels  through  their  territorial  waters. 
Indeed  any  action  of  this  character  must  necessarily  be  prevented 
by  considerations  of  reciprocal  interest. 

The  Committee  therefore  submit  the  following  resolutions :  — 

1.  It  is  the  right  of  every  State  to  enact  such  prohibitions, 
restrictions,  and  regulations  as  it  may  think  proper  in 
regard  to  the  passage  of  air  craft  through  the  air  space 
above  its  territories  and  territorial  waters. 

2.  Subject  to  this  right  of  subjacent  States  liberty  of  pas- 
sage of  air  craft  ought  to  be  accorded  freely  to  the  air 
craft  of  every  nation. 

Dr.  E.  von  Hofmannsthal  while  agreeing  generally  with  these 
resolutions,  prefers  to  adopt  the  principle  of  full  sovereignty 
restricted  by  the  right  of  innocent  passage,  as  he  considers  that 
the  words  "as  it  may  think  proper"  in  the  first  of  the  above 
resolutions  might  be  open  to  abuse,  and  that  it  would  therefore 
be  preferable  to  hmit  the  regulations  to  such  as  are  "necessary 
for  the  protection  and  welfare  of  the  subjacent  State  and  its 
inhabitants." 

Certain  members  of  the  Committee,  notably  Drs.  Fauchille 
and  Karl  Strupp  and  Professors  Henry-Coiiannier  and  Nie- 
meyer,  have  expressed  themselves  as  unable  to  agree  with  this 
Report  or  the  Resolutions.  They  prefer  to  adhere  to  the  sug- 
gestion of  "aerial  circulation"  on  the  Hnes  of  the  Resolutions 
of  the  Institut  de  Droit  Interiiatioiial  and  Comiie  Juridique 
International  d^ Aviation  above  referred  to.  Professor  Henry- 
Coliannier  considers  that  the  fundamental  basis  of  any 
International  Code  should  be  "Liberty  of  innocent  aerial 
circulation  subject  to  certain  Umited  powers  to  be  conceded 
to  subjacent  States,"  but  without  admitting  any  "rights"  as 
of  course  in  these  latter. 

Pending  the  decision  of  the  Association  as  to  the  basis  of  the 
International  Code  to  be  studied,  we  have  not  proceeded  further 
with  it,  and  for  this  reason  we  have  not  touched  upon  Mr. 
Coiiannier's  paper  upon  "Epaves,"  but  we  recommend  that 


THE  LAW  or  PEACE  57 

the  Committee  be  continued  for  a  further  Report  to  be  submitted 
at  the  next  meeting  of  this  Association. 

Note.  —  The  resolutions  of  the  Committee  were  carried  by  21  to  2. 
But  of  course  they  have  no  binding  power.  Private  individuals  cannot 
legislate  for  nations,  though  wise  statesmen  will  always  treat  with  respect 
the  opinion  of  a  strong  body  of  experts.  At  present  there  is  a  tendency 
among  states  to  regard  the  space  above  their  territories  as  a  possession  with 
regard  to  which  they  can  make  use  of  sovereign  power  in  the  same  sense 
and  to  the  same  extent  as  they  exercise  it  over  their  land  and  territorial 
waters.  If  this  view  prevails  it  will  be  necessary  to  guard  carefully  by 
general  agreement  against  a  denial  of  access  on  frivolous  grounds  to  inno- 
cent air  craft  of  foreign  nationality. 

10.   Conditions  of  Occupation 

EXTRA-CT    FROM    THE    GENERAL   ACT    OF   THE    WeST   AfRICAN 

Conference  of  1884-1885 
Article  34 

Any  Power  which  henceforth  takes  possession  of  a  tract 
of  land  on  the  coasts  of  the  African  Continent  outside  of  its 
present  possession.s,  or  which,  being  hitherto  without  such 
possessions,  shall  acquire  them,  as  well  as  the  Power  which 
assumes  a  protectorate  there,  shall  accompany  the  respective 
act  with  a  notification  thereof,  addressed  to  the  other  Signatory 
Powers  of  the  present  Act,  in  order  to  enable  them,  if  need  be, 
to  make  good  any  claims  of  their  own. 

Article  35 

The  Signatory  Powers  of  the  present  Act  recognize  the  obliga- 
tion to  insure  the  establishment  of  authority  in  the  regions 
occupied  by  them  on  the  coasts  of  the  African  Continent  suffi- 
cient to  protect  existing  rights,  and,  as  the  case  may  be,  freedom 
of  trade  and  of  transit  under  the  conditions  agreed  upon. 

Note.  —  It  will  be  seen  that  Article  34  refers  to  protectorates  as  well 
as  territories  acquired  in  full  sovereignty  while  Article  35  omits  any 
mention  of  the  former.  Moreover  both  refer  to  portions  of  the  African 
Continent  only.  But  the  tendency  of  opinion  and  practice  since  1885  has 
been  to  remove  all  Umitations  on  the  application  of  the  principles  laid 


58  DOCUMENTS  ON  INTERNATIONAL  LAW 

down  in  the  Declaration.  States  are  now  expected  to  notify  all  new 
acquisitions  to  territory  hitherto  accounted  res  nnUins,  and  to  keep 
rudimentary  order  in  their  protectorates  as  well  as  in  districts  over 
which  they  claim  sovereign  power. 

11.   Cession  by  a  Mixture  of  Forced  Gift  and  Sale 
The  Philippine  Islands 

On  the  10th  of  December,  1898,  the  treaty  of  peace  between 
the  United  States  and  Spain  was  signed.  It  provided,  among 
other  things,  that  Spain  should  cede  to  the  United  States  the 
archipelago  known  as  the  Philippine  Islands,  that  the  United 
States  should  pay  to  Spain  the  sum  of  twenty  million  of  dollars 
and  that  the  civil  rights  and  political  status  of  the  native 
inhabitants  of  the  territories  thus  ceded  to  the  United  States 
should  be  determined  by  the  Congress.  The  treaty  was  ratified 
by  the  Senate  on  the  6th  of  February,  1899,  and  by  the  Govern- 
ment of  Spain  on  the  19th  of  March  following.  The  ratifica- 
tions were  exchanged  on  the  11th  of  April  and  the  treaty  publicly 
proclaimed.  On  the  2nd  of  March  the  Congress  voted  the  sum 
contemplated  by  the  treaty,  and  the  amount  was  paid  over  to 
the  Spanish  Government  on  the  1st  of  May. 

In  this  manner  the  Philippines  came  to  the  United  States. 
The  islands  were  ceded  by  the  Government  of  Spain,  which  had 
been  in  undisputed  possession  of  them  for  centuries.  They 
were  accepted  not  merely  by  our  authorized  commissioners  in 
Paris,  under  the  direction  of  the  Executive,  but  by  the  constitu- 
tional and  well-considered  action  of  the  representatives  of  the 
people  of  the  United  States  in  both  Houses  of  Congress.  — 
{Message  of  President  McKinley,  Dec.  5,  1899.) 

12.   Cession  after  an  Unsuccessful  War 

Treaty  of  Peace  between  Turkey  and  the  Balkan 
Allies,  Signed  at  London,  May  30,  1913 

Article  1 

Upon  the  exchange  of  ratifications  of  the  present  treaty 
there  shall  be  peace  and  amity  between  His  Imperial  Majesty 


THE  LAW  OF  PEACE  59 

the  Sultan  of  Turkey,  on  the  one  hand,  and  Their  Majesties  the 
AlUed  Sovereigns,  on  the  other  hand,  as  well  as  between  their 
heirs  and  successors,  their  respective  states  and  subjects  for 
ever. 

Article  2 

His  Imperial  Majesty  the  Sultan  cedes  to  Their  Majesties 
the  Allied  Sovereigns  all  the  territories  of  his  Empire  on  the 
continent  of  Europe  west  of  a  line  drawn  from  Enos  on  the 
Aegean  Sea  to  Midia  on  the  Black  Sea,  with  the  exception  of 
Albania. 

The  exact  line  of  the  frontier  shall  be  determined  by  a  com- 
mission. 

Article  3 

His  Imperial  Majesty  the  Sultan  and  Their  Majesties  the 
Allied  Sovereigns  declare  that  they  submit  to  His  Majesty  the 
Emperor  of  Germany,  His  Majesty  the  Emperor  of  Austria  and 
King  of  Hungary,  the  President  of  the  French  Republic,  His 
Majesty  the  King  of  Great  Britain  and  Ireland  and  Emperor 
of  India,  His  Majesty  the  King  of  Italy,  and  His  Majesty  the 
Emperor  of  all  the  Russias  the  matter  of  arranging  the  delimita- 
tion of  the  frontiers  of  Albania  and  all  other  questions  concern- 
ing Albania. 

Article  4 

His  Imperial  Majesty  the  Sultan  declares  that  he  cedes  to 
Their  Majesties  the  Allied  Sovereigns  the  Island  of  Crete, 
and  renounces  in  their  favour  all  rights  of  sovereignty  and  all 
other  rights  which  he  possessed  over  that  island. 

Article  5 
His  Imperial  Majesty  the  Sultan  and  Their  Majesties  the 
Allied  Sovereigns  declare  that  they  entrust  to  His  Majesty  the 
Emperor  of  Germany,  His  Majesty  the  Emperor  of  Austria 
and  King  of  Hungary,  the  President  of  the  French  Republic, 
His  Majesty  the  King  of  Great  Britain  and  Ireland  and  Emperor 
of  India,  and  His  Majesty  the  Emperor  of  all  the  Russias  the 
matter  of  passing  upon  the  title  to  all  the  Ottoman  islands  in 


60  DOCUMENTS  ON  INTERNATIONAL  LAW 

the  Aegean  Sea  (except  the  Island  of  Crete)  and  to  the  Peninsula 
of  Mount  Athos. 

Article  6 

His  Imperial  Majesty  the  Sultan  and  Their  Majesties  the 
Allied  Sovereigns  declare  that  they  refer  the  matter  of  settling 
questions  of  a  financial  nature  resulting  from  the  war  which  is 
ending,  and  from  the  above-mentioned  cessions  of  territory,  to 
the  international  commission  convened  at  Paris,  to  which  they 
have  sent  their  representatives. 

Article  7 

Questions  concerning  prisoners  of  war,  questions  of  juris- 
diction, of  nationality  and  of  commerce  shall  be  settled  by 
special  conventions.  —  {Su'p'plement  to  the  Anwican  Journal  of 
International  Law,  Jan.  1914,  PP-  12-13.) 

13.   A  Modem  Protectorate 

Protectorate  Treaty  between  France  and  Morocco, 

1912 

The  Government  of  the  French  Republic  and  the  Govern- 
ment of  His  Majesty  the  Sultan,  desirous  of  inaugurating  a 
regular  regime  in  Morocco  based  upon  internal  order  and  general 
security,  making  it  possible  to  introduce  reforms  and  to  insure 
the  economic  development  of  the  country,  have  agreed  upon 
the  following: 

Article  I 

The  Government  of  the  French  Republic  and  His  Majesty 
the  Sultan  have  agreed  to  establish  in  Morocco  a  new  regime 
admitting  of  the  administrative,  juridical,  educational,  eco- 
nomic, financial  and  military  reforms  which  the  French 
Government  may  deem  useful  to  be  introduced  within  the 
Moroccan  territory. 

This  regime  shall  safeguard  the  religious  status,  the  respect 
and  traditional  prestige  of  the  Sultan,  the  exercise  of  the  Mo- 
hammedan religion  and  of  the  religious  institutions  and  in  par- 


THE  LAW  OF  PEACE  61 

ticular  those  of  the  habous.  It  shall  admit  of  the  organization 
of  a  reformed  Shereefian  Makhzen. 

The  Government  of  the  Republic  will  come  to  an  understand- 
ing with  the  Spanish  Government  regarding  the  interests  which 
this  Government  has  in  virtue  of  its  geographical  position  and 
territorial  possessions  on  the  Moroccan  Coast. 

In  like  manner,  the  City  of  Tangiers  shall  retain  the  distinc- 
tive characteristic  for  which  it  has  been  known  and  which  will 
determine  its  municipal  organization. 

Article  II 

His  Majesty  the  Sultan  consents  that  henceforth  the  French 
Government,  after  it  shall  have  notified  the  Makhzen,  may 
proceed  to  such  military  occupation  of  the  Moroccan  territory 
as  it  may  deem  necessary  for  the  maintenance  of  good  order  and 
the  security  of  commercial  transactions,  and  to  exercise  every 
police  supervision  on  land  and  within  the  Moroccan  waters. 

Article  III 

The  Government  of  the  Republic  pledges  itself  to  lend  con- 
stant support  to  His  Shereefian  Majesty  against  all  dangers 
which  might  threaten  his  person  or  throne,  or  endanger  the 
tranquillity  of  his  states.  The  same  support  shall  be  given  the 
heir  to  the  throne  and  his  successors. 

Article  IV 

Such  measures  as  the  new  regime  of  the  protectorate  may 
require  shall  be  established  by  edict,  upon  the  proposal  of  the 
French  Government,  by  His  Shereefian  Majesty  or  the  authori- 
ties to  whom  he  may  have  delegated  his  power.  The  same 
process  shall  be  observed  in  the  matter  of  new  regulations  and 
of  modifications  of  the  existing  regulations. 

Article  V 

The  French  Government  shall  be  represented  near  His  She- 
reefian Majesty  by  a  resident  commissioner  general,  representa- 


62  DOCUMENTS  ON  INTERNATIONAL  LAW 

tive  of  all  the  powers  of  the  Republic  in  Morocco,  who  shall 
attend  to  the  execution  of  the  present  agreement. 

The  resident  commissioner  general  shall  be  the  sole  inter- 
mediary between  the  Sultan  and  foreign  representatives  and 
in  the  relations  which  these  representatives  maintain  with  the 
Moroccan  Government.  In  particular,  he  shall  have  charge 
of  all  matters  relating  to  foreigners  in  the  Shereefian  Empire. 

He  shall  have  the  power  to  approve  and  promulgate,  in  the 
name  of  the  French  Government,  all  the  decrees  issued  by  His 
Shereefian  Majesty. 

Article  VI 

The  diplomatic  and  consular  agents  of  France  shall  be  charged 
with  the  representation  and  protection  of  Moroccan  subjects 
and  interests  abroad. 

His  Majesty  the  Sultan  pledges  himself  not  to  conclude  any 
act  of  an  international  nature  without  the  previous  approval 
of  the  French  Republic. 

Article  VII 

The  Government  of  the  French  Republic  and  the  Govern- 
ment of  His  Shereefian  Majesty  reserve  unto  themselves  to 
determine  by  mutual  agreement  the  bases  for  a  financial  re- 
organization which,  while  respecting  the  rights  conferred  upon 
bondholders  of  the  Moroccan  public  loans,  shall  make  it  possi- 
ble to  guarantee  the  engagements  of  the  Shereefian  treasury  and 
to  collect  regularly  the  revenues  of  the  empire. 

Article  VIII 

His  Shereefian  Majesty  declares  that  in  future,  he  will  refrain 
from  contracting,  directly  or  indirectly,  any  public  or  private 
loan,  and  from  granting  in  any  form  whatever  any  conces- 
sion without  the  authorization  of  the  French  Government.  — 
{Supplement  to  the  American  Journal  of  International  Law, 
July,  1912,  pp.  207-209.) 


THE  LAW  OF  PEACE  63 

14.   Spheres  of  Influence 

Anglo-German  Agreement  of  1890 

Article  I 

In  East  Africa  the  sphere  in  which  the  exercise  of  influence 
is  reserved  to  Germany  is  bounded  — 

1.  To  the  north  by  a  line  which,  commencing  on  the  coast  at 
the  north  bank  of  the  mouth  of  the  Riva  Umba,  runs  direct  to 
Lake  Jipe;  passes  thence  along  the  eastern  side  and  round  the 
northern  side  of  the  lake,  and  crosses  the  River  Lume;  after 
which  it  passes  midway  between  the  territories  of  Taveita  and 
Chagga,  skirts  the  northern  base  of  the  Kilimanjaro  range,  and 
thence  is  drawn  direct  to  the  point  on  the  eastern  side  of  Lake 
Victoria  Nyanza  which  is  intersected  by  the  1st  parallel  of 
south  latitude;  thence,  crossing  the  lake  on  that  parallel,  it 
follows  the  parallel  to  the  frontier  of  the  Congo  Free  State, 
where  it  terminates. 

It  is,  however,  understood  that,  on  the  west  side  of  the  lake, 
the  sphere  does  not  comprise  Mount  Mfumbiro.  If  that  moun- 
tain shall  prove  to  lie  to  the  south  of  the  selected  parallel,  the 
line  shall  be  deflected  so  as  to  exclude  it,  but  shall,  nevertheless, 
return  so  as  to  terminate  at  the  above-named  point. 

2.  To  the  south  by  a  line  which,  starting  on  the  coast  at 
the  northern  limit  of  the  Province  of  Mozambique,  follows  the 
course  of  the  River  Rovuma  to  the  point  of  confluence  of  the 
Msinje;  thence  it  runs  westward  along  the  parallel  of  that 
point  till  it  reaches  Lake  Nyassa;  thence  striking  northward, 
it  follows  the  eastern,  northern,  and  western  shores  of  the  lake 
to  the  northern  bank  of  the  mouth  of  the  River  Songwe;  it 
ascends  that  river  to  the  point  of  its  intersection  by  the  33rd 
degree  of  east  longitude;  thence  it  follows  the  river  to  the 
point  where  it  approaches  most  nearly  the  boundary  of  the 
geographical  Congo  Basin  defined  in  the  1st  Article  of  the  Act 
of  Berlin,  as  marked  in  the  Map  attached  to  the  9th  Protocol 
of  the  Conference. 


64  DOCUMENTS  ON  INTERNATIONAL  LAW 

From  that  point  it  strikes  direct  to  the  above-named  bound- 
ary; and  follows  it  to  the  point  of  its  intersection  by  the 
32nd  degree  of  east  longitude;  from  which  point  it  strikes 
direct  to  the  point  of  confluence  of  the  northern  and  southern 
branches  of  the  River  Kilambo,  and  thence  follows  that  river 
till  it  enters  Lake  Tanganyika. 

The  course  of  the  above  boundary  is  traced  in  general 
accordance  with  a  Map  of  the  Nyassa-Tanganyika  Plateau, 
officially  prepared  for  the  British  Government  in  1889. 

3.  To  the  west  by  a  line  which,  from  the  mouth  of  the  River 
Kilambo  to  the  1st  parallel  of  south  latitude,  is  conterminous 
with  the  Congo  Free  State. 

The  sphere  in  which  the  exercise  of  influence  is  reserved  to 
Great  Britian  is  bounded  — 

1.  To  the  south  by  the  above-mentioned  line  running  from 
the  mouth  of  the  River  Umba  to  the  point  where  the  1st  parallel 
of  south  latitude  reaches  the  Congo  Free  State.  Mount 
Mfumbiro  is  included  in  the  sphere. 

2.  To  the  north  by  a  line  commencing  on  the  coast  at  the 
north  bank  of  the  mouth  of  the  River  Juba;  thence  it  ascends 
that  bank  of  the  river  and  is  conterminous  with  the  territory 
reserved  to  the  influence  of  Italy  in  Gallaland  and  Abyssinia, 
as  far  as  the  confines  of  Egypt. 

3.  To  the  west  by  the  Congo  Free  State  and  by  the  western 
watershed  of  the  basin  of  the  Upper  Nile. 

Article  II 

In  order  to  render  effective  the  delimitation  recorded  in  the 
preceding  Article,  Germany  withdraws  in  favour  of  Great 
Britain  her  Protectorate  over  Witu.  Great  Britain  engages  to 
recognize  the  sovereignty  of  the  Sultan  of  Witu  over  the  terri- 
tory extending  from  Kipini  to  the  point  opposite  the  Island  of 
Kwyhoo,  fixed  as  the  boundary  in  1887. 

Germany  also  withdraws  her  Protectorate  over  the  adjoining 
coast  up  to  Kismayu,  as  well  as  her  claims  to  all  other  territo- 
ries on  the  mainland,  to  the  north  of  the  River  Tana,  and  to 
the  Islands  of  Patta  and  Manda. 


THE  LAW  OF  PEACE  65 


Article  III 


In  South-West  Africa  the  sphere  in  which  the  exercise  of 
influence  is  reserved  to  Germany  is  bounded :  — 

1.  To  the  south  by  a  line  commencing  at  the  mouth  of  the 
Orange  River,  and  ascending  the  north  Bank  of  that  River  to 
the  point  of  its  intersection  by  the  20th  degree  of  east  longitude. 

2.  To  the  east  by  a  line  commencing  at  the  above-named 
point  and  following  the  20th  degree  of  east  longitude  to  the  point 
of  its  intersection  by  the  22nd  parallel  of  south  latitude,  it 
runs  eastward  along  that  parallel  to  the  point  of  its  intersection 
by  the  21st  degree  of  east  longitude;  thence  it  follows  that 
degree  northward  to  the  point  of  its  intersection  by  the  18th 
parallel  of  south  latitude;  it  runs  eastward  along  that  parallel 
till  it  reaches  the  River  Chobe;  and  descends  the  centre  of  the 
main  channel  of  that  river  to  its  junction  with  the  Zambesi, 
where  it  terminates. 

It  is  understood  that  under  this  arrangement  Germany  shall 
have  free  access  from  her  Protectorate  to  the  Zambesi  by  a 
strip  of  territory  which  shall  at  no  point  be  less  than  20  English 
miles  in  width. 

The  sphere  in  which  the  exercise  of  influence  is  reserved  to 
Great  Britain  is  bounded  to  the  west  and  north-west  by  the 
above-mentioned  line.     It  includes  Lake  Ngami. 

The  course  of  the  above  boundary  is  traced  in  general  accord- 
ance with  a  Map  officially  prepared  for  the  British  Government 
in  1889. 

The  delimitation  of  the  southern  boundary  of  the  British 
territory  of  Walfish  Bay  is  reserved  for  arbitration,  unless  it 
shall  be  settled  by  the  consent  of  the  two  Powers  within  two 
years  from  the  date  of  the  conclusion  of  this  Agreement.  The 
two  Powers  agree  that,  pending  such  settlement,  the  passage 
of  the  subjects  and  the  transit  of  goods  of  both  Powers  through 
the  territory  now  in  dispute  shall  be  free;  and  the  treatment 
of  their  subjects  in  that  territory  shall  be  in  all  respects  equal. 
No  dues  shall  be  levied  on  goods  in  transit.  Until  a  settlement 
shall  be  effected  the  territory  shall  be  considered  neutral. 


66  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  IV 
In  West  Africa  — 

1.  The  boundary  between  the  German  Protectorate  of  Togo 
and  the  British  Gold  Coast  Colony  commences  on  the  coast  at 
the  marks  set  up  after  the  negotiations  between  the  Commis- 
sioners of  the  two  countries  of  the  14th  and  28th  of  July,  1886; 
and  proceeds  direct  northward  to  the  6°  10'  parallel  of  north 
latitude;  thence  it  runs  along  that  parallel  westwards  till  it 
reaches  the  left  bank  of  the  River  Aka;  ascends  the  mid-channel 
of  the  river  to  the  6°  20'  parallel  of  north  latitude;  runs  along 
that  parallel  westward  to  the  right  bank  of  the  River  Dchawe 
or  Shavoe;  follows  that  bank  of  the  river  till  it  reaches  the 
parallel  corresponding  with  the  point  of  confluence  of  the  river 
Deine  with  the  Volta;  it  runs  along  that  parallel  westward  till 
it  reaches  the  Volta;  from  that  point  it  ascends  the  left  bank 
of  the  Volta  till  it  arrives  at  the  neutral  zone  established  by  the 
Agreement  of  1888,  which  commences  at  the  confluence  of  the 
River  Dakka  with  the  Volta. 

Each  Power  engages  to  withdraw  immediately  after  the  con- 
clusion of  this  Agreement  all  its  officials  and  employes  from 
territory  which  is  assigned  to  the  other  Power  by  the  above 
delimitation. 

2.  It  having  been  proved  to  the  satisfaction  of  the  two 
Powers  that  no  river  exists  on  the  Gulf  of  Guinea  correspond- 
ing with  that  marked  on  Maps  as  the  Rio  del  Rey,  to  which 
reference  was  made  in  the  Agreement  of  1885,  a  provisional 
line  of  demarcation  is  adopted  between  the  German  sphere  in 
the  Cameroons  and  the  adjoining  British  sphere,  which,  start- 
ing from  the  head  of  the  Rio  del  Rey  creek,  goes  direct  to  the 
point,  about  9°  8'  of  east  longitude,  marked  "Rapids"  in  the 
British  Admiralty  Chart. 

Article  V 

It  is  agreed  that  no  Treaty  or  Agreement,  made  by  or  on 
behalf  of  either  Power  to  the  north  of  the  River  Benu6,  shall 
interfere  with  the  free  passage  of  goods  of  the  other  Power, 


THE  LAW  OF  PEACE  67 

without  payment  of  transit  dues,  to  and  from  the  shores  of 
Lake  Chad. 

All  Treaties  made  in  territories  intervening  between  the 
Benue  and  Lake  Chad  shall  be  notified  by  one  Power  to  the 
other. 

Article  VI 

All  the  lines  of  demarcation  traced  in  Articles  I  to  IV  shall 
be  subject  to  rectification  by  agreement  between  the  two 
Powers,  in  accordance  with  local  requirements. 

It  is  specially  understood  that,  as  regards  the  boundaries 
traced  in  Article  IV,  Commissioners  shall  meet  with  the  least 
possible  delay  for  the  object  of  such  rectification. 

Article  VII 

The  two  Powers  engage  that  neither  will  interfere  with  any 
sphere  of  influence  assigned  to  the  other  by  Articles  I  to  IV. 
One  Power  will  not  in  the  sphere  of  the  other  make  acquisi- 
tions, conclude  Treaties,  accept  sovereign  rights  or  Protector- 
ates, nor  hinder  the  extension  of  influence  of  the  other. 

It  is  understood  that  no  Companies  or  individuals  subject 
to  one  Power  can  exercise  sovereign  rights  in  a  sphere  assigned 
to  the  other,  except  with  the  assent  of  the  latter. 

Article  VIII 
The  two  Powers  engage  to  apply  in  all  the  portions  of  their 
respective  spheres,  within  the  limits  of  the  free  zone  defined  by 
the  Act  of  Berlin  of  1885,  to  which  the  first  five  Articles  of  that 
Act  are  applicable  at  the  date  of  the  present  Agreement,  the 
provisions  of  those  Articles  according  to  which  trade  enjoys 
complete  freedom;  the  navigation  of  the  lakes,  rivers,  and 
canals,  and  of  the  ports  on  those  waters  is  free  to  both  flags; 
and  no  differential  treatment  is  permitted  as  regards  transport 
or  coasting  trade;  goods  of  whatever  origin  are  subject  to  no 
dues  except  those,  not  differential  in  their  incidence,  which  may 
be  levied  to  meet  expenditure  in  the  interest  of  trade;  no  transit 
dues  are  permitted;  and  no  monopoly  or  favour  in  matters  of 
trade  can  be  granted. 


68  DOCUMENTS  ON   INTERNATIONAL  LAW 

The  subjects  of  either  Power  will  be  at  liberty  to  settle  freely 
in  their  respective  territories  situated  within  the  free  trade 
zone. 

It  is  specially  understood  that,  in  accordance  with  these 
provisions,  the  passage  of  goods  of  both  Powers  will  be  free 
from  all  hindrances  and  from  all  transit  dues  between  Lake 
Nyassa  and  the  Congo  State,  between  Lake  Nyassa  and  Tan- 
ganyika, on  Lake  Tanganyika,  and  between  that  lake  and  the 
northern  boundary  of  the  two  spheres. 

Article  IX 

Trading  and  mineral  Concessions,  and  rights  to  real  property, 
held  by  Companies  or  individuals,  subjects  of  one  Power,  shall, 
if  their  validity  is  duly  established,  be  recognized  in  the  sphere 
of  the  other  Power.  It  is  understood  that  Concessions  must  be 
worked  in  accordance  with  local  laws  and  regulations. 

Article  X 

In  all  territories  in  Africa  belonging  to,  or  under  the  influence 
of  either  Power,  missionaries  of  both  countries  shall  have  full 
protection.  Religious  toleration  and  freedom  for  all  forms  of 
divine  worship  and  religious  teaching  are  guaranteed. 

Article  XI 

Great  Britain  engages  to  use  all  her  influence  to  facilitate  a 
friendly  arrangement,  by  which  the  Sultan  of  Zanzibar  shall 
cede  absolutely  to  Germany  his  possessions  on  the  mainland 
comprised  in  existing  Concessions  to  the  German  East  African 
Company,  and  their  dependencies,  as  well  as  the  Island  of 
Mafia. 

It  is  understood  that  His  Highness  will,  at  the  same  time, 
receive  an  equitable  indemnity  for  the  loss  of  revenue  resulting 
from  such  cession. 

Germany  engages  to  recognize  a  Protectorate  of  Great  Brit- 
ain over  the  remaining  dominions  of  the  Sultan  of  Zanzibar, 
including  the  Islands  of  Zanzibar  and  Pemba,  as  well  as  over 


THE  LAW  OF  PEACE  69 

the  dominions  of  the  Sultan  of  Witu,  and  the  adjacent  terri- 
tory up  to  Kismayu,  from  which  her  Protectorate  is  withdrawn. 
It  is  understood  that  if  the  cession  of  the  German  coast  has  not 
taken  place  before  the  assumption  by  Great  Britain  of  the 
Protectorate  of  Zanzibar,  Her  Majesty's  Government  will,  in 
assuming  the  Protectorate,  accept  the  obligation  to  use  all  their 
influence  with  the  Sultan  to  induce  him  to  make  the  cession  at 
the  earliest  possible  period  in  consideration  of  an  equitable 

indemnity. 

Article  XII 

1.  Subject  to  the  assent  of  the  British  Parliament,  the 
sovereignty  over  the  Island  of  Heligoland,  -  together  with  its 
dependencies,  is  ceded  by  Her  Britannic  Majesty  to  His  Majesty 
the  Emperor  of  Germany. 

2.  The  German  Government  will  allow  to  all  persons  natives 
of  the  territory  thus  ceded  the  right  of  opting  for  British  nation- 
ality by  means  of  a  declaration  to  be  made  by  themselves,  and, 
in  the  case  of  children  under  age,  by  their  parents  or  guardians, 
which  must  be  sent  in  before  the  1st  of  January,  1892. 

3.  All  persons  natives  of  the  territory  thus  ceded,  and  their 
children  born  before  the  date  of  the  signature  of  the  present 
Agreement,  are  free  from  the  obligation  of  service  in  the  mili- 
tary and  naval  forces  of  Germany. 

4.  Native  laws  and  customs  now  existing  will,  as  far  as 
possible,  remain  undisturbed. 

5.  The  German  Government  binds  itself  not  to  increase  the 
Customs  Tariff  at  present  in  force  in  the  territory  thus  ceded 
until  the  1st  January,  1910. 

6.  All  rights  to  property  which  private  persons  or  existing 
Corporations  have  acquired  in  Heligoland  in  connection  with 
the  British  Government  are  maintained;  obligations  resulting 
from  them  are  transferred  to  His  Majesty  the  Emperor  of 
Germany.  It  is  understood  that  the  above  term,  "rights  to 
property,"  includes  the  right  of  signalling  now  enjoyed  by 
Lloyd's. 

7.  The  rights  of  British  fishermen  with  regard  to  anchorage 
in  all  weathers,  to  taking  in  provisions  and  water,  to  making 


70  DOCUMENTS  ON  INTERNATIONAL  LAW 

repairs,  to  transshipment  of  goods,  to  the  sale  of  fish,  and  to 
the  landing  and  drying  of  nets,  remain  undisturbed. 


15.   Assignment  of  Lease  of  Territory 
Port  Arthur 

The  Imperial  Russian  Government  transfer  and  assign  to  the 
Imperial  Government  of  Japan,  with  the  consent  of  the  Govern- 
ment of  China,  the  lease  of  Port  Arthur,  Talien  and  adjacent 
territory  and  territorial  waters  and  all  rights,  privileges,  and 
concessions  connected  with  or  forming  part  of  such  lease,  and 
they  also  transfer  and  assign  to  the  Imperial  Government  of 
Japan  all  public  works  and  properties  in  the  territory  affected 
by  the  above-mentioned  lease.  The  two  High  Contracting 
Parties  mutually  engage  to  obtain  the  consent  of  the  Chinese 
Government  mentioned  in  the  foregoing  stipulation.  —  {Article 
y,  of  Treaty  of  Portsmouth  between  Russia  and  Japan,  1905.) 

16.   Assignment  of  the  Island  of  Cyprus  to  be  occupied 
and  administered  by  Great  Britain 

A.    Convention  of  1878.     Assignment  of  Cyprus 

If  Batoum,  Ardahan,  Kars,  or  any  of  them  shall  be  retained 
by  Russia,  and  if  any  attempt  shall  be  made  at  any  future  time 
by  Russia  to  take  possession  of  any  further  territories  of  His 
Imperial  Majesty  the  Sultan  in  Asia,  as  fixed  by  the  Definitive 
Treaty  of  Peace,  England  engages  to  join  His  Imperial  Majesty 
the  Sultan  in  defending  them  by  force  of  arms. 

In  return,  His  Imperial  Majesty  the  Sultan  promises  to 
England  to  introduce  necessary  reforms  to  be  agreed  upon  later 
between  the  two  Powers,  into  the  government,  and  for  the 
protection,  of  the  Christian  and  other  subjects  of  the  Porte  in 
these  territories;  and  in  order  to  enable  England  to  make  neces- 
sary provision  for  the  executing  her  engagement.  His  Imperial 
Majesty  the  Sultan  further  consents  to  assign  the  Island  of 
Cyprus  to  be  occupied  and  administered  by  England. 


THE  LAW  OF  PEACE  71 

B.   Conditions  of  the  Assignment,  contained  in  an  Annexe 
to  the  above  Convention 

It  is  understood  between  the  two  High  Contracting  Parties 
that  England  agrees  to  the  following  conditions  relating  to  her 
occupation  and  administration  of  the  Island  of  Cyprus :  — 

I.  That  a  Mussulman  religious  Tribunal  (Mehkemei  Sheri) 
shall  continue  to  exist  in  the  island,  which  will  take  exclusive 
cognizance  of  religious  matters,  and  of  no  others,  concerning  the 
Mussulman  population  of  the  island. 

II.  That  a  Mussulman  resident  in  the  Island  shall  be  named 
by  the  Board  of  Pious  Foundations  in  Turkey  (Evkraf)  to 
superintend,  in  conjunction  with  a  Delegate  to  be  appointed 
by  the  British  Authorities,  the  administration  of  the  pro- 
perty, funds,  and  lands  belonging  to  mosques,  cemeteries, 
Mussulman  schools,  and  other  religious  establishments 
existing  in  Cyprus. 

III.  That  England  will  pay  to  the  Porte  whatever  is  the 
present  excess  of  revenue  over  expenditure  in  the  island;  this 
excess  to  be  calculated  upon  and  determined  by  the  average 
of  the  last  five  years,  stated  to  be  22,936  purses,  to  be  duly 
verified  hereafter,  and  to  the  exclusion  of  the  produce  of  State 
and  Crown  lands  let  or  sold  during  that  period. 

IV.  That  the  Sublime  Porte  may  freely  sell  and  lease  lands 
and  other  property  in  Cyprus  belonging  to  the  Ottoman  Crown 
and  State  (Arazii  Miriye  ve  Emlaki  Houmayoun)  the  produce 
of  which  does  not  form  part  of  the  revenue  of  the  island  referred 
to  in  Article  III. 

V.  That  the  English  Government,  through  their  competent 
authorities,  may  purchase  compulsorily,  at  a  fair  price,  land 
required  for  public  improvements,  or  for  other  public  purposes, 
and  land  which  is  not  cultivated. 

VI.  That  if  Russia  restores  to  Turkey  Kars  and  the  other 
conquests  made  by  her  in  Armenia  during  the  last  war,  the 
Island  of  Cyprus  will  be  evacuated  by  England,  and  the  Con- 
vention of  the  4th  of  June,  1878,  will  be  at  an  end. 


72  DOCUMENTS  ON  INTERNATIONAL  LAW 

17.   Assignment  of  Bosnia  and  Herzegovina  to  be  occupied 
and  administered  by  Austria 

The  provinces  of  Bosnia  and  Herzegovina  shall  be  occupied 
and  administered  by  Austria-Hungary.  The  Government  of 
Austria-Hungary,  not  desiring  to  undertake  the  administration 
of  the  Sandjak  of  Novi-Bazar,  which  extends  between  Servia 
and  Montenegro  in  a  south-easterly  direction  to  the  other  side 
of  Mitrovitza,  the  Ottoman  Administration  will  continue  to 
exercise  its  functions  there.  Nevertheless,  in  order  to  assure 
the  maintenance  of  the  new  political  state  of  affairs,  as  well 
as  freedom  and  security  of  communications,  Austria-Hungary 
reserves  the  right  of  keeping  garrisons  and  having  military  and 
commercial  roads  in  the  whole  of  this  part  of  the  ancient  Vilayet 
of  Bosnia.  To  this  end  the  Governments  of  Austria-Hungary 
and  Turkey  reserve  to  themselves  to  come  to  an  understanding 
on  the  details.  —  {Article  XXV,  of  the  Treaty  of  Berlin,  1876.) 

18.   Austro-Hungarian    Imperial    Rescript    of    Oct.     7tli,     1908, 
assuming  Full  Sovereignty  over  Bosnia  and  Herzegovina 

We,  Francis  Joseph  I,  Emperor  of  Austria,  King  of  Bohemia, 
and  Apostolic  King  of  Hungary  to  the  inhabitants  of  Bosnia 
and  the  Herzegovina :  — 

When  a  generation  since  our  troops  crossed  the  borders  of 
your  lands  you  were  assured  that  they  came  not  as  foes  but  as 
friends,  with  the  firm  will  to  remedy  the  evils  from  which  your 
Fatherland  had  suffered  so  severely  for  many  years. 

This  word,  given  at  a  grave  moment,  has  been  honestly  kept. 
It  has  been  the  constant  endeavour  of  our  Govermnent  to  lead 
the  country  in  calm  legality,  by  ceaseless  activity,  towards  a 
happier  future. 

To  our  great  joy  we  can  say  that  the  seed  then  scattered  in 
the  furrows  of  a  troubled  soil  has  richly  thriven.  You  your- 
selves must  feel  it  a  boon  that  order  and  security  have  replaced 
violence  and  oppression,  that  trade  and  traffic  are  constantly 
extending,  that  the  moralizing  influence  of  increased  education 


THE  LAW  OF  PEACE  73 

has  been  brought  to  bear,  and  that  under  the  shield  of  an  orderly 
administration  every  man  may  enjoy  the  fruits  of  his  work. 

It  is  the  earnest  duty  of  us  all  to  march  ceaselessly  forward 
along  this  path.  With  this  goal  before  our  eyes  we  deem  the 
moment  come  to  give  the  inhabitants  of  the  two  lands  a  new 
proof  of  our  trust  in  their  poUtical  maturity.  In  order  to  raise 
Bosnia  and  the  Herzegovina  to  a  higher  level  of  poHtical  Ufe 
we  have  resolved  to  grant  to  both  lands  constitutional  institu- 
tions that  take  account  of  prevaiUng  conditions  and  general 
interests  so  as  to  create  a  legal  basis  for  the  representation  of 
their  wishes  and  needs.  You  shall  henceforth  have  a  voice 
when  decisions  are  taken  concerning  the  affairs  of  your  home 
which,  as  hitherto,  will  have  a  separate  administration. 

But  the  indispensable  premise  for  the  introduction  of  this 
provincial  Constitution  is  the  creation  of  a  clear  and  unam- 
biguous juridical  position  for  the  two  lands. 

For  this  reason,  and  also  remembering  the  ties  that  existed 
of  yore  between  our  glorious  ancestors  on  the  Hungarian 
Throne  and  these  lands,  we  extend  the  rights  of  our  Sovereignty 
to  Bosnia  and  the  Herzegovina  and  it  is  our  will  that  the  order 
of  succession  of  our  House  be  applied  to  these  lands  also. 

The  inhabitants  of  the  two  lands  thus  share  all  the  benefits 
which  a  lasting  confirmation  of  the  present  connexion  can  offer. 
The  new  order  of  things  will  be  a  pledge  that  civiHzation  and 
welfare  will  find  a  sure  place  in  your  homes. 

Inhabitants  of  Bosnia  and  the  Herzegovina:  — 

Among  the  many  cares  that  surround  our  Throne,  care  for 
your  material  and  spiritual  welfare  shall  in  future  also  not  be 
the  least.  The  exalted  idea  of  equal  right  for  all  before  the  law, 
a  share  in  the  legislation  and  administration  of  provincial  affairs, 
equal  protection  for  all  reUgious  creeds,  for  languages  and  social 
idiosyncracies  —  all  these  high  possessions  shall  you  enjoy  in 
full  measure.  The  freedom  of  the  individual  and  the  welfare 
of  the  whole  will  be  the  lodestar  of  our  Government  in  the  two 
lands.  You  will  assuredly  show  yourselves  worthy  of  the  trust 
placed  in  you  by  attachment  and  loyalty  to  us  and  to  our  House. 
And  thus  we  hope  that  the  noble  harmony  between  Prince  and 


74  DOCUMENTS  ON  INTERNATIONAL  LAW 

people,   that  dearest  pledge  of  all  State  progress,   will   ever 
accompany  us  upon  our  common  path. 

Francis  Joseph 
—  (The  Times,  Oct.  7th,  1908.) 

19.    Excerpts    from    the    Convention    of    1906    between    Great 

Britain  and  France,  establishing  Joint  Sovereignty  in  the 

New  Hebrides 

Article  I 

Status 

(1)  The  Group  of  the  New  Hebrides,  including  the  Banks  and 
Torres  Islands,  shall  form  a  region  of  joint  influence,  in  which 
the  subjects  and  citizens  of  the  two  Signatory  Powers  shall 
enjoy  equal  rights  of  residence,  personal  protection,  and  trade, 
each  of  the  two  Powers  retaining  jurisdiction  over  its  subjects 
or  citizens,  and  neither  exercising  a  separate  control  over  the 
Group. 

(2)  The  subjects  or  citizens  of  other  Powers  shall  enjoy  the 
same  rights  and  shall  be  subject  to  the  same  obligations  as 
British  subjects  or  French  citizens.  They  must  choose  ^\^thin 
six  months  betewen  the  legal  systems  of  one  of  the  two  Powers. 
Failing  such  choice,  the  High  Commissioners  mentioned  in 
Article  II.  or  their  Delegates  shall  decide  under  which  system 
they  shall  be  placed. 

(3)  In  all  matters  not  contrary  to  the  provisions  of  the  present 
Convention,  or  the  regulations  made  thereunder,  the  subjects 
and  citizens  of  the  two  Signatory  Powers  and  the  subjects  and 
citizens  of  other  Powers  shall,  within  the  New  Hebrides,  remain 
subject  to  the  fullest  extent  to  the  laws  of  their  respective 
countries. 

(4)  The  two  Signatory  Powers  undertake  not  to  erect  For- 
tifications in  the  Group  and  not  to  estabUsh  penal  settlements 
of  any  kind. 

Article  II 
Local  Authorities  —  Police 
(1)  The  Signatory  Powers  shall  be  represented  in  the  Group 
by  two  High  Commissioners,  one  appointed  by  His  Britannic 


THE  LAW  OF  PEACE  75 

Majesty's  Government,  the  other  by  the  Government  of  the 
French  Republic. 

(2)  The  High  Commissioners  shall  each  be  assisted  by  a 
Resident  Commissioner,  to  whom  they  shall  delegate  their 
respective  powers  in  so  far  as  they  consider  it  expedient,  and 
who  shall  represent  them  in  the  Group  when  they  do  not  reside 
there. 

(3)  The  High  Commissioners  or  their  Delegates  shall  be 
provided  with  a  police  force  of  sufficient  strength  to  guarantee 
effectively  the  protection  of  life  and  property. 

(4)  The  force  shall  be  divided  into  two  divisions  of  equal 
strength.  Each  of  these  two  divisions  shall  be  under  the  orders 
of  one  of  the  two  Resident  Commissioners,  and  shall  in  no  case 
be  employed  otherwise  than  in  conformity  with  the  principles 
laid  down  by  the  present  Convention. 

(5)  When  it  is  necessary  to  employ  some  or  all  of  both  divi- 
sions of  the  force  in  conformity  with  the  present  Convention  or 
of  the  regulations  framed  for  its  execution,  the  force  shall  be 
under  the  joint  direction  of  the  High  Commissioners  or  their 
Delegates. 

Article  IV 

Public  Services  Undertaken  in  Common 

(1)  The  following  public  services  shall  be  undertaken  in 
common :  —  Pohce,  posts  and  telegraphs,  pubUc  works,  ports 
and  harbours,  buoys  and  hghthouses,  public  health,  finance. 

(2)  These  pubHc  services  shall  be  organized  and  directed  by 
the  High  Commissioners  and  their  Delegates  jointly. 

(3)  Special  postage  stamps  shall  be  issued  for  the  New  Heb- 
rides, in  conformity  with  the  International  Postal  Convention. 

(4)  EngUsh  and  French  money  and  bank-notes  authorized 
by  either  Power  shall  be  legal  tender  in  the  Group. 

Article  V 
Financial  Provisions 
(1)  Each  of  the  two  Signatory  Powers  shall  defray  the  ex- 
penses of  its  own  administration  in  the  Group. 


76  DOCUMENTS  ON  INTERNATIONAL  LAW 

(2)  The  expenses  of  the  Joint  Court  and  of  the  public  ser- 
vices undertaken  in  common  shall  be  defrayed  out  of  local 
taxes,  to  be  imposed  by  the  High  Commissioners  jointly,  the 
receipts  from  fines  and  from  the  postal  service,  and  all  other 
revenue  of  a  joint  character. 

In  the  event  of  the  revenue  from  the  above  proving  insuffi- 
cient, the  two  Signatory  Powers  shall  each  pay  one-half  of  the 
deficit. 

Article  X 

Composition 

(1)  A  Joint  Court  shall  be  established,  consisting  of  three 
Judges,  of  whom  one  shall  be  President.  A  fourth  officer  shall 
act  as  Public  Prosecutor,  and  shall  have  charge  of  the  pre- 
liminary inquiries. 

The  Court  shall  be  provided  with  a  Registrar  and  the  requisite 
staff. 

(2)  Each  of  the  two  Governments  shall  appoint  one 
Judge. 

His  Majesty  the  King  of  Spain  shall  be  invited  to  appoint  the 
third,  who  shall  be  President  of  the  Court.  The  officer  who  acts 
as  PubHc  Prosecutor  shall  be  appointed  in  the  same  manner. 
Neither  of  these  two  officers  shall  be  a  British  subject  or  a 
French  citizen. 

The   Registrar   and   the  staff  sliall   be   appointed   by   the 
President. 

(3)  If  either  of  the  two  Governments  considers  that  it  has  a 
cause  of  complaint  against  the  President  of  the  Joint  Court,  or 
the  officer  acting  as  Public  Prosecutor,  it  shall  inform  the  other 
Government. 

If  both  Governments  agree,  they  shall  request  His  Majesty 
the  King  of  Spain  to  appoint  another  person  to  fill  the 
post. 

If  they  disagree,  His  Majesty  the  King  of  Spain  shall  deter- 
mine whether  the  complaint  is  justified  and  whether  the  officer 
complained  of  shall  be  retained  or  superseded. 


THE  LAW  OF  PEACE  77 

Article  XII 
Jurisdiction 

The  Joint  Court  shall  have  jurisdiction:  — 

(1)  In  civil  (including  commercial)  cases: 

(A)  Over  all  suits  respecting  land  in  the  Group;  (B)  Over 
suits  of  every  kind  between  natives  and  non-natives. 

(2)  In  poUce  and  criminal  cases: 

Over  every  offence  or  crime  committed  by  natives  against 
non-natives. 

(3)  Generally: 

Over  the  particular  offences  constituted  by  the  present  Con- 
vention or  the  regulations  framed  for  the  purpose  of  carrying 
it  out. 

20.   The  Navigation  of  the  Dardanelles  and  the  Bosphorus 

A 

Convention  of  1856  between  Austria,  France,  Great  Britain, 
Prussia,  Russia,  Sardinia,  and  Turkey 

Article  I.  His  Majesty  the  Sultan,  on  the  one  part,  declares 
that  he  is  firmly  resolved  to  maintain  for  the  future  the  principle 
invariably  estabhshed  as  the  ancient  rule  of  his  Empire,  and  in 
virtue  of  which  it  has,  at  all  times,  been  prohibited  for  the  ships 
of  war  of  foreign  Powers  to  enter  the  Straits  of  the  Dardanelles 
and  of  the  Bosphorus;  and  that,  so  long  as  the  Porte  is  at  peace, 
His  Majesty  will  admit  no  foreign  ship  of  war  into  the  said 
Straits. 

And  Their  Majesties  the  Queen  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  the  Emperor  of  Austria,  the  Emperor 
of  the  French,  the  King  of  Prussia,  the  Emperor  of  all  the 
Russias,  and  the  King  of  Sardinia,  on  the  other  part,  engage 
to  respect  this  determination  of  the  Sultan,  and  to  conform 
themselves  to  the  principle  above  declared. 

Article  II.  The  Sultan  reserves  to  himself,  as  in  past  times, 
to  deUver  firmans  of  passage  for  hght  vessels  under  flag  of  war, 


78  DOCUMENTS  ON   INTERNATIONAL  LAW 

which  shall  be  employed,  as  is  usual,  in   the  service  of  the 
Missions  of  foreign  Powers. 

Article  III.  The  same  exception  applies  to  the  hght  vessels 
under  the  flag  of  war  which  each  of  the  Contracting  Powers  is 
authorized  to  station  at  the  mouths  of  the  Danube  in  order  to 
secure  the  execution  of  the  regulations  relative  to  the  liberty 
of  that  river,  and  the  number  of  which  is  not  to  exceed  two  for 
each  Power. 

B 

Extract  from  the  Treaty  of  1871  between  Austria,  France, 
Germany,  Great  Britain,  Italy,  Russia,  and  Turkey 

Article  II.  The  principle  of  the  closing  of  the  Straits  of  the 
Dardanelles  and  the  Bosphorus,  such  as  it  has  been  established 
by  the  separate  Convention  of  March  30,  1856,  is  maintained, 
with  power  to  His  Imperial  Majesty  the  Sultan  to  open  the 
said  Straits  in  time  of  peace  to  the  vessels  of  war  of  friendly 
and  alUed  Powers,  in  case  the  Sublime  Porte  should  judge  it 
necessary  in  order  to  secure  the  execution  of  the  stipulations  of 
the  Treaty  of  Paris  of  March  30,  1856. 

21.    Convention    of    1888    for    the    Neutralization    of    the    Suez 

Canal,  signed  by  Austria,  France,  Germany,  Great  Britain, 

Italy,  Holland,  Russia,  Spain,  and  Turkey 

Article  I    • 

The  Suez  Maritime  Canal  shall  always  be  free  and  open,  in 
time  of  war  as  in  time  of  peace,  to  every  vessel  of  commerce 
or  of  war,  without  distinction  of  flag. 

Consequently,  the  High  Contracting  Parties  agree  not  in 
any  way  to  interfere  with  the  free  use  of  the  Canal,  in  time  of 
war  as  in  time  of  peace. 

The  Canal  shall  never  be  subjected  to  the  exercise  of  the 
right  of  blockade. 

Article  II 

The  High  Contracting  Parties,  recognizing  that  the  Fresh- 
Water  Canal  is  indispensable  to  the  Maritime  Canal,  take  note 


THE  LAW  OF  PEACE  79 

of  the  engagements  of  His  Highness  the  Khedive  towards  the 
Universal  Suez  Canal  Company  as  regards  the  Fresh-Water 
Canal,  which  engagements  are  stipulated  in  a  Convention  bear- 
ing date  the  18th  March,  1863,  containing  an  expose  and  four 
Articles. 

They  undertake  not  to  interfere  in  any  way  with  the  security 
of  that  Canal  and  its  branches,  the  working  of  which  shall  not 
be  exposed  to  any  attempt  at  obstruction. 

Article  III 

The  High  Contracting  Parties  hkewise  undertake  to  respect 
the  plant,  establishments,  buildings,  and  works  of  the  Mari- 
time Canal  and  of  the  Fresh- Water  Canal. 

Article  IV 

The  Maritime  Canal  remaining  open  in  time  of  war  as  a 
free  passage,  even  to  the  ships  of  war  of  belligerents,  according 
to  the  terms  of  Article  I  of  the  present  Treaty,  the  High  Con- 
tracting Parties  agree  that  no  right  of  war,  no  act  of  hostility 
nor  any  act  having  for  its  object  to  obstruct  the  free  navigation 
of  the  Canal,  shall  be  committed  in  the  Canal  and  its  ports  of 
access,  as  well  as  within  a  radius  of  3  marine  miles  from  those 
ports,  even  though  the  Ottoman  Empire  should  be  one  of  the 
belhgerent  Powers. 

Vessels  of  war  of  belligerents  shall  not  revictual  or  take  in 
stores  in  the  Canal  and  its  ports  of  access,  except  in  so  far  as 
may  be  strictly  necessary.  The  transit  of  the  aforesaid  vessels 
through  the  Canal  shall  be  effected  with  the  least  possible 
delay,  in  accordance  with  the  Regulations  in  force,  and  without 
any  other  intermission  than  that  resulting  from  the  necessities 
of  the  service. 

Their  stay  at  Port  Said  and  in  the  roadstead  of  Suez  shall 
not  exceed  twenty-four  hours,  except  in  case  of  distress.  In 
such  case  they  shall  be  bound  to  leave  as  soon  as  possible.  An 
interval  of  twenty-four  hours  shall  always  elapse  between  the 
sailing  of  a  belhgerent  ship  from  one  of  the  ports  of  access  and 
the  departure  of  a  ship  belonging  to  the  hostile  Power. 


80  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  V 

In  time  of  war  belligerent  Powers  shall  not  disembark  nor 
embark  within  the  Canal  and  its  ports  of  access  either  troops, 
munitions,  or  materials  of  war.  But  in  case  of  an  accidental 
hindrance  in  the  Canal,  men  may  be  embarked  or  disembarked 
at  the  ports  of  access  by  detachments  not  exceeding  1,000  men, 
with  a  corresponding  amount  of  war  material. 

Article  VI 

Prizes  shall  be  subjected  in  all  respects,  to  the  same  rules  as 
the  vessels  of  war  of  belligerents. 

Article  VII 

The  Powers  shall  not  keep  any  vessel  of  war  in  the  waters 
of  the  Canal  (including  Lake  Timsah  and  the  Bitter  Lakes). 

Nevertheless,  they  may  station  vessels  of  war  in  the  ports 
of  access  of  Port  Said  and  Suez,  the  number  of  which  shall  not 
exceed  two  for  each  Power. 

This  right  shall  not  be  exercised  by  belligerents. 

Article  VIII 

The  Agents  in  Egypt  of  the  Signatory  Powers  of  the  present 
Treaty  shall  be  charged  to  watch  over  its  execution.  In  case 
of  any  event  threatening  the  security  of  the  free  passage  of 
the  ('anal,  they  shall  meet  on  the  summons  of  three  of  their 
number,  under  the  presidency  of  their  Doyen,  in  order  to  pro- 
ceed to  the  necessary  verifications.  They  shall  inform  the 
Khedivial  Government  of  the  danger  which  they  may  have 
perceived,  in  order  that  that  Government  may  take  proper 
steps  to  insure  the  protection  and  the  free  use  of  the  Canal. 
Under  any  circumstances  they  shall  meet  once  a  year  to  take 
note  of  the  due  execution  of  the  Treaty. 

The  last-mentioned  meetings  shall  take  place  under  the  presi- 
dency of  a  Special  Commissioner  nominated  for  that  purpose 
by  the  Imperial  Ottoman  Govermnent.     A  Commissioner  of 


THE  LAW  OF  PEACE  81 

the  Khedive  may  also  take  part  in  the  meeting,  and  may  pre- 
side over  it  in  case  of  the  absence  of  the  Ottoman  Commissioner. 
They  shall  especially  demand  the  suppression  of  any  work  or 
the  dispersion  of  any  assemblage,  on  either  bank  of  the  Canal, 
the  object  or  effect  of  which  might  be  to  interfere  with  the  Uberty 
and  the  entire  security  of  the  navigation. 

Article  IX 

The  Egyptian  Government  shall,  within  the  hmits  of  its 
powers  resulting  from  the  Firmans,  and  under  the  conditions 
provided  for  in  the  present  Treaty,  take  the  necessary  measures 
for  insuring  the  execution  of  the  said  Treaty. 

In  case  the  Egyptian  Government  should  not  have  sufficient 
means  at  its  disposal,  it  shall  call  upon  the  Imperial  Ottoman 
Government,  which  shall  take  the  necessary  measures  to 
respond  to  such  appeal;  shall  give  notice  thereof  to  the  Signatory 
Powers  of  the  Declaration  of  London  of  the  17th  March,  1885; 
and  shall  if  necessary,  concert  with  them  on  the  subject. 

The  provisions  of  Articles  IV,  V,  VII,  and  VIII  shall  not 
interfere  with  the  measures  which  shall  be  taken  in  virtue  of 
the  present  Article, 

Article  X 

Similarly,  the  provisions  of  Articles  IV,  V,  VII,  and  VIII 
shall  not  interfere  with  the  measures  which  His  Majesty  the 
Sultan  and  His  Highness  the  Khedive,  in  the  name  of  His  Im- 
perial Majesty,  and  within  the  limits  of  the  Firmans  granted, 
might  find  it  necessary  to  take  for  securing  by  their  own  forces 
the  defence  of  Egypt  and  the  maintenance  of  pubUc  order. 

In  case  His  Imperial  Majesty  the  Sultan,  or  His  Highness 
the  Khedive,  should  find  it  necessary  to  avail  themselves  of  the 
exceptions  for  which  this  Article  provides,  the  Signatory  Powers 
of  the  Declaration  of  London  (March  17th,  1885)  shall  be 
notified  thereof  by  the  Imperial  Ottoman  Government. 

It  is  Ukewise  understood  that  the  provisions  of  the  four 
Articles  aforesaid  shall  in  no  case  occasion  any  obstacle  to  the 
measures  which  the  Imperial  Ottoman  Government  may  think 


82  DOCUMENTS  ON  INTERNATIONAL  LAW 

it  necessary  to  take  in  order  to  insure  by  its  own  forces  the 
defence  of  its  other  possessions  situated  on  the  eastern  coast 
of  the  Red  Sea. 

Article  XI 

The  measures  which  shall  be  taken  in  the  cases  provided  for 
by  Articles  IX  and  X  of  the  present  Treaty  shall  not  interfere 
with  the  free  use  of  the  Canal.  In  the  same  cases,  the  erection 
of  permanent  fortifications  contrary  to  the  provisions  of  Article 
VIII  is  prohibited. 

Article  XII 

The  High  Contracting  Parties,  by  application  of  the  principle 
of  equality  as  regards  the  free  use  of  the  Canal,  a  principle 
which  forms  one  of  the  bases  of  the  present  Treaty,  agree  that 
none  of  them  shall  endeavour  to  obtain  with  respect  to  the  Canal 
territorial  or  commercial  advantages  or  privileges  in  any  inter- 
national arrangements  which  may  be  concluded.  Moreover, 
the  rights  of  Turkey  as  the  territorial  Power  are  reserved. 

Article  XIII 

With  the  exception  of  the  obligations  expressly  provided  by 
the  clauses  of  the  present  Treaty,  the  sovereign  rights  of  His 
Imperial  Majesty  the  Sultan,  and  the  rights  and  immunities  of 
His  Highness  the  Khedive,  resulting  from  the  Firmans,  are  in 
no  way  affected. 

Article  XIV 

The  High  Contracting  Parties  agree  that  the  engagements 
resulting  from  the  present  Treaty,  shall  not  be  limited  by  the 
duration  of  the  Acts  of  Concession  of  the  Universal  Suez  Canal 
Company. 

Article  XV 

The  stipulations  of  the  present  Treaty  shall  not  interfere 
with  the  sanitary  measures  in  force  in  Egypt. 


THE  LAW  OF  PEACE  83 

Article  XVI 

The  High  Contracting  Parties  undertake  to  bring  the  present 
Treaty  to  the  knowledge  of  the  States  which  have  not  signed  it, 
inviting  them  to  accede  to  it. 

In  witness  whereof  the  respective  Plenipotentiaries  have 
signed  present  Treaty,  and  have  affixed  to  it  the  seal  of  their 
arms. 

Note.  —  Great  Britain  took  an  active  part  in  the  negotiation  of  the 
above  Convention,  but  accompanied  her  acceptance  of  it  with  a  reservation 
of  the  appUcation  of  its  provisions  "in  so  far  as  they  may  not  be  com- 
patible with  the  transitory  and  exceptional  condition  of  things  actually 
existing  in  Egypt,  and  may  hmit  the  freedom  of  action  of  the  (British) 
Government  during  the  period  of  the  occupation  of  Egypt  by  the  forces 
of  Her  Britannic  Majesty."  But  by  Article  VI  of  the  Agreement  of  1904 
with  France  concerning  Egypt  and  Morocco  Great  Britain  receded  from 
this  position,  and  signified  her  adherence,  not  only  to  the  provisions  of 
the  Convention  of  1888,  but  to  their  enforcement  also.  Both  parties,  how- 
ever, concurred  in  the  indefinite  suspension  of  tlae  annual  meetings  pro- 
vided for  by  Article  VIII  of  the  Convention.  (See  Part  II,  No.  8, 
Article  6,  page  51.) 

22.  The  Hay-Pauncefote  Treaty  of  1901  for  the  Construction 
and  Neutralization  of  the  Panama  Canal 

The  United  States  of  America  and  His  Majesty,  Edward  the 
Seventh,  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
and  of  the  British  Dominions  beyond  the  Seas,  King,  and 
Emperor  of  India,  being  desirous  to  facilitate  the  construction 
of  a  ship  canal  to  connect  the  Atlantic  and  Pacific  Oceans,  by 
whatever  route  may  be  considered  expedient,  and  to  that  end  to 
remove  any  objection  which  may  arise  out  of  the  Convention 
of  the  19th  April,  1850,  commonly  called  the  Clayton-Bulwer 
Treaty  to  the  construction  of  such  canal  under  the  auspices 
of  the  Government  of  the  United  States,  without  impairing 
the  "general  principle"  of  neutrahzation  established  in  Article 
VIII  of  that  Convention,  have  for  that  purpose  appointed  as 
their  Plenipotentiaries,  (Here  follow  names  and  descriptions,) 
Who,  having  communicated  to  each  other  their  full  powers 


84  DOCUMENTS  ON  INTERNATIONAL  LAW 

whicti  were  found  to  be  in  due  and  proper  form,  have  agreed 
upon  the  following  articles:  — 

Article  I 

The  High  Contracting  Parties  agree  that  the  present  Treaty 
shall  supersede  the  afore-mentioned  Convention  of  the  19th 
April,  1850. 

Article  II 

It  is  agreed  that  the  canal  may  be  constructed  under  the 
auspices  of  the  Government  of  the  United  States,  either  directly 
at  its  own  cost,  or  by  gift  or  loan  of  money  to  individuals  or 
corporations,  or  through  subscription  to  or  purchase  of  stock 
or  shares,  and  that,  subject  to  the  provisions  of  the  present 
Treaty,  the  said  Government  shall  have  and  enjoy  all  the  rights 
incident  to  such  construction,  as  well  as  the  exclusive  right  of 
providing  for  the  regulation  and  management  of  the  canal. 

Article  III 

The  United  States  adopts,  as  the  basis  of  the  neutrahzation 
of  such  ship-canal,  the  following  rules,  substantially  as  embodied 
in  the  Convention  of  Constantinople,  signed  the  29th.  October, 
1888,  for  the  free  navigation  of  the  Suez  Canal,  that  is  to  say: 

1 .  The  canal  shall  be  free  and  open  to  the  vessels  of  commerce 
and  of  war  of  all  nations  observing  these  Rules,  on  terms  of 
entire  equality,  so  that  there  shall  be  no  discrimination  against 
any  such  nation,  or  its  citizens  or  subjects,  in  respect  of  the 
conditions  or  charges  of  traffic,  or  otherwise.  Such  conditions 
and  charges  of  traffic  shall  be  just  and  equitable. 

2.  The  canal  shall  never  be  blockaded,  nor  shall  any  right 
of  war  be  exercised  nor  any  act  of  hostility  be  committed  within 
it.  The  United  States,  however,  shall  be  at  liberty  to  maintain 
such  military  pohce  along  the  canal  as  may  be  necessary  to 
protect  it  against  lawlessness  and  disorder. 

3.  Vessels  of  war  of  a  belligerent  shall  not  revictual  nor 
take  any  stores  in  the  canal  except  so  far  as  may  be  strictly 
necessary;    and  the  transit  of  such  vessels  through  the  canal 


THE  LAW  OF  PEACE  85 

shall  be  effected  with  the  least  possible  delay  in  accordance  with 
the  Regulations  in  force,  and  with  only  such  intermission  as  may 
result  from  the  necessities  of  the  service. 

Prizes  shall  be  in  all  respects  subject  to  the  same  Rules  as 
vessels  of  war  of  the  belligerents. 

4.  No  belligerent  shall  embark  or  disembark  troops,  munitions 
of  war,  or  warlike  materials  in  the  canal,  except  in  case  of  acci- 
dental hindrance  of  the  transit,  and  in  such  case  the  transit  shall 
be  resumed  with  all  possible  dispatch. 

5.  The  provisions  of  this  article  shall  apply  to  waters  ad- 
jacent to  the  canal,  within  three  marine  miles  of  either  end. 
Vessels  of  war  of  a  belligerent  shall  not  remain  in  such  waters 
longer  than  twenty-four  hours  at  any  one  time,  except  in  case 
of  distress,  and  in  such  case,  shall  depart  as  soon  as  possible; 
but  a  vessel  of  war  of  one  belligerent  shall  not  depart  within 
twenty-four  hours  from  the  departure  of  a  vessel  of  war  of  the 
other  belligerent. 

6.  The  plant,  establishments,  buildings  and  all  works  neces- 
sary to  the  construction,  maintenance,  and  operation  of  the 
canal  shall  be  deemed  to  be  part  thereof,  for  the  purposes  of 
this  Treaty,  and  in  time  of  war,  as  in  time  of  peace,  shall  enjoy 
complete  immunity  from  attack  or  injury  by  belligerents  and 
from  acts  calculated  to  impair  their  usefulness  as  part  of  the 
canal. 

Article  IV 

It  is  agreed  that  no  change  of  territorial  sovereignty  or  of 
the  international  relations  of  the  country  or  countries  traversed 
by  the  before-mentioned  canal  shall  affect  the  general  principle 
of  neutralization  or  the  obligation  of  the  High  Contracting 
Parties  under  the  present  Treaty.  (Suppleme^it  to  the  Ameri- 
can Journal  of  International  Law,  April,  1909,  pp.  127-129.) 

23.   Excerpts  from  the  Hay-Varilla  Treaty  of  1903  for  the 
Construction  and  Working  of  the  Panama  Canal 

The  United  States  of  America  and  the  Republic  of  Panama 
being  desirous  to  insure  the  construction  of  a  ship  canal  across 


86  DOCUMENTS  ON  INTERNATIONAL  LAW 

the  Isthmus  of  Panama  to  connect  the  Atlantic  and  Pacific 
oceans,  and  the  Congress  of  the  United  States  of  America  having 
passed  an  act  approved  June  28,  1902,  in  furtherance  of  that 
object,  by  which  the  President  of  the  United  States  is  authorized 
to  acquire  within  a  reasonable  time  the  control  of  the  necessary 
territory  of  the  Republic  of  Colombia,  and  the  sovereignty  of 
such  territory  being  actually  vested  in  the  Republic  of  Panama, 
the  high  contracting  parties  have  resolved  for  that  purpose  to 
conclude  a  Convention  and  have  accordingly  appointed  as  their 
Plenipotentiaries,  (here  follow  names  and  descriptions),  who 
have  agreed  upon  and  concluded  the  following  articles :  — 

Article  I 

The  United  States  guarantees  and  will  maintain  the  inde- 
pendence of  the  Republic  of  Panama. 

Article  II 

The  Republic  of  Panama  grants  to  the  United  States  in  per- 
petuity the  use,  occupation  and  control  of  a  zone  of  land  and  land 
under  water  for  the  construction,  maintenance,  operation, 
sanitation  and  protection  of  said  canal  of  the  width  of  ten  miles 
extending  to  the  distance  of  five  miles  on  each  side  of  the  centre 
line  of  the  route  of  the  canal  to  be  constructed;  the  said  zone 
beginning  in  the  Caribbean  Sea  three  marine  miles  from  mean 
low  water  mark  and  extending  to  and  across  the  Isthmus  of 
Panama  into  the  Pacific  Ocean  to  a  distance  of  three  marine 
miles  from  mean  low  water  mark  with  the  proviso  that  the 
cities  of  Panama  and  Colon  and  the  harbours  adjacent  to  said 
cities,  which  are  included  within  the  boundaries  of  the  zone 
above  described,  shall  not  be  included  within  this  grant.  The 
Republic  of  Panama  further  grants  to  the  United  States  in  per- 
petuity the  use,  occupation  and  control  of  any  other  lands  and 
waters  outside  of  the  zone  above  described  which  may  be  neces- 
sary and  convenient  for  the  construction,  maintenance,  opera- 
tion, sanitation  and  protection  of  the  said  canal  or  of  any 
auxiliary  canals  or  other  works  necessary  and  convenient  for 


THE  LAW  OF  PEACE  87 

the  construction,  maintenance,  operation,  sanitation,  and  pro- 
tection of  the  said  enterprise. 

The  Republic  of  Panama  further  grants  in  hke  manner  to 
the  United  States  in  perpetuity  all  islands  within  the  hmits  of 
the  zone  above  described  and  in  addition  thereto  the  group 
of  small  islands  in  the  Bay  of  Panama,  named  Perico,  Naos, 
Culebra  and   Flamenco. 

Article  III 
The  Republic  of  Panama  grants  to  the  United  States  all  the 
rights,  power  and  authority  within  the  zone  mentioned  and 
described  in  Article  II  of  this  agreement  and  within  the  limits  of 
all  auxiliary  lands  and  waters  mentioned  and  described  in  said 
Article  II  which  the  United  States  would  possess  and  exercise 
if  it  were  the  sovereign  of  the  territory  within  which  the  said 
lands  and  waters  are  located  to  the  entire  exclusion  of  the  exer- 
cise of  the  Republic  of  Panama  of  any  such  sovereign  rights, 
power  or  authority. 

Article  IV 

As  rights  subsidiary  to  the  above  grants  the  Republic  of 
Panama  grants  in  perpetuity  to  the  United  States  the  rights  to 
use  the  rivers,  streams,  lakes  and  other  bodies  of  water  within 
its  limits  for  navigation,  the  supply  of  water  or  water-power 
or  other  purposes,  so  far  as  the  use  of  said  rivers,  streams,  lakes 
and  bodies  of  water  and  the  waters  thereof  may  be  necessary 
and  convenient  for  the  construction,  maintenance,  operation, 
sanitation,  and  protection  of  the  said  canal. 

Article  V 
The  Republic  of  Panama  grants  to  the  United  States  in  per- 
petuity a  monopoly  for  the  construction,  maintenance  and 
operation  of  any  system  of  communication  by  means  of  canal 
or  railroad  across  its  territory  between  the  Caribbean  Sea  and 
the  Pacific  Ocean. 

Article  IX 

The  United  States  agrees  that  the  ports  at  either  entrance  of 
the  canal  and  the  waters  thereof,  and  the  Republic  of  Panama 


88  DOCUMENTS  ON  INTERNATIONAL  LAW 

agrees  that  the  towns  of  Panama  and  Colon  shall  be  free  for  all 
time  so  that  there  shall  not  he  imposed  or  collected  custom 
house  tolls,  tonnage,  anchorage,  lighthouse,  wharf,  pilot,  or 
quarantine  dues  or  any  other  charges  or  taxes  of  any  kind  upon 
any  vessel  using  or  passing  through  the  canal  or  belonging  to 
or  employed  by  the  United  States,  directly  or  indirectly  in 
connection  with  the  construction,  maintenance,  operation, 
sanitation  and  protection  of  the  main  canal,  or  auxiliary  works, 
or  upon  the  cargo,  officers,  crew,  or  passengers  of  any  such 
vessels,  except  such  tolls  and  charges  as  may  be  imposed  by  the 
United  States  for  the  use  of  the  canal  and  other  works,  and 
except  tolls  and  charges  imposed  by  the  Republic  of  Panama 
upon  merchandise  destined  to  be  introduced  for  the  consump- 
tion of  the  rest  of  the  Republic  of  Panama,  and  upon  vessels 
touching  at  the  ports  of  Colon  and  Panama  and  which  do  not 
cross  the  canal. 

The  Government  of  the  Republic  of  Panama  shall  have  the 
right  to  establish  in  such  ports  and  in  the  towns  of  Panama 
and  Colon  such  houses  and  guards  as  it  may  deem  necessary 
to  collect  duties  on  importations  destined  to  other  portions  of 
Panama  and  to  prevent  contraband  trade.  The  United  States 
shall  have  the  right  to  make  use  of  the  towns  and  harbours  of 
Panama  and  Colon  as  places  of  anchorage,  and  for  making 
repairs,  for  loading,  unloading,  depositing,  or  transshipping 
cargoes  either  in  transit  or  destined  for  the  service  of  the  canal 
and  for  other  works  pertaining  to  the  canal. 

Article  X 
The  Republic  of  Panama  agrees  that  there  shall  not  be 
imposed  any  taxes,  national,  municipal,  departmental,  or  of 
any  other  class,  upon  the  canal,  the  railways  and  auxiliary 
works,  tugs  and  other  vessels  employed  in  the  service  of  the 
canal,  store  houses,  work-shops,  offices,  quarters  for  labourers, 
factories  of  all  kinds,  warehouses,  wharves,  machinery  and 
other  works,  property,  and  effects  appertaining  to  the  canal 
or  railroad  and  auxiliary  works,  or  their  officers  or  employees 
situated  within  the  cities  of  Panama  and  Colon,  and  that  there 


THE  LAW  OF  PEACE  89 

shall  not  be  imposed  contributions  or  charges  of  a  personal 
character  of  any  kind  upon  officers,  employees,  labourers,  and 
other  individuals  in  the  service  of  the  canal  and  railroad  and 
auxiliary  works. 

Article  XIV 

As  the  price  of  compensation  for  the  rights,  powers  and  priv- 
ileges granted  in  this  Convention  by  the  Republic  of  Panama 
to  the  United  States,  the  government  of  the  United  States 
agrees  to  pay  to  the  Republic  of  Panama  the  sum  of  ten  million 
dollars  ($10,000,000)  in  gold  coin  of  the  United  States  on  the 
exchange  of  the  ratification  of  this  Convention,  and  also  an 
annual  payment  during  the  life  of  this  Convention  of  two  hun- 
dred and  fifty  thousand  dollars  ($250,000)  in  like  gold  coin, 
beginning  nine  years  after  the  date  aforesaid. 

The  provisions  of  this  article  shall  be  in  addition  to  all  other 
benefits  assured  to  the  Republic  of  Panama  under  this  Con- 
vention. 

But  no  delay  or  difference  of  opinion  under  this  article  or  any 
other  provisions  of  this  treaty  shall  affect  or  interrupt  the  full 
operation  and  effect  of  this  Convention  in  all  other  respects. 

Article  XVIII 

The  canal,  when  constructed,  and  the  entrances  thereto 
shall  be  neutral  in  perpetuity,  and  shall  be  opened  upon  the 
terms  provided  for  by  Section  I  of  Article  III  of,  and  in  con- 
formity with  all  the  stipulations  of,  the  treaty  entered  into  by 
the  Government  of  the  United  States  and  Great  Britain  on 
November  18,  1901.     (See  page  84.) 

Article  XIX 

The  Government  of  the  Republic  of  Panama  shall  have  the 
right  to  transport  over  the  canal  its  vessels  and  its  troops  and 
munitions  of  war  in  such  vessels  at  all  times  without  paying 
charges  of  any  kind.  The  exemption  is  to  be  extended  to  the 
auxiliary  railway  for  the  transportation  of  persons  in  the  ser- 
vice of  the  Republic  of  Panama,  or  of  the  police  force  charged 


90  DOCUMENTS  ON  INTERNATIONAL  LAW 

with  the  preservation  of  pubhc  order  outside  of  said  zone,  as 
well  as  to  their  baggage,  munitions  of  war  and  supplies. 

Article  XXIII 

If  it  should  "become  necessary  at  any  time  to  employ  armed 
forces  for  the  safety  or  protection  of  the  canal,  or  of  the  ships 
that  make  use  of  the  same,  or  the  railways  and  auxiliary  works, 
then  the  United  States  shall  have  the  right,  at  all  times  and  in 
its  discretion,  to  use  its  police  and  its  land  and  naval  forces  or 
to  establish  fortifications  for  these  purposes. 

Article  XXV 

For  the  better  performance  of  the  engagements  of  this  Con- 
vention and  to  the  end  of  the  efficient  protection  of  the  canal 
and  the  preservation  of  its  neutrality,  the  Government  of  the 
Republic  of  Panama  will  sell  or  lease  to  the  United  States  lands 
adequate  and  necessary  for  naval  or  coaling  stations  on  the 
Pacific  coast  and  on  the  western  Caribbean  coast  of  the  Repub- 
lic at  certain  points  to  be  agreed  upon  with  the  President  of 
the  United  States.  —  {Supplement  of  the  American  Journal  of 
International  Law,  April,  1909,  pp.  130-139.) 

24.   Extract  from  the  Panama  Canal  Act,  1912,  of  the 
Congress  of  the  United  States 

Section  5.  That  the  President  is  hereby  authorized  to  pre- 
scribe and  from  time  to  time  change  the  tolls  that  shall  be  levied 
by  the  Government  of  the  United  States  for  the  use  of  the 
Panama  Canal:  Provided,  That  no  tolls,  when  prescribed  as 
above,  shall  be  changed,  unless  six  months'  notice  thereof 
shall  have  been  given  by  the  President  by  proclamation.  No 
tolls  shall  be  levied  upon  vessels  engaged  in  the  coast-wise 
trade  of  the  United  States. 

Note.  —  Great  Britain  maintained  that  the  exemption  from  tolls  thus 
granted  to  vessels  engaged  in  the  coast-wise  trade  of  the  United  States 
was  a  violation  of  that  paragraph  of  Article  III  of  the  Hay-Pauncefote 
Treaty  of  1901  which  stipulates  that  the  Canal  shall  be  open  to  the  vessels 
"  of  all  nations  ...  on  terms  of  entire  equaUty,"  and  forbids  discrim- 


THE  LAW  OF  PEACE  91 

ination  "in  respect  of  the  conditions  or  charges  of  traffic"  (see  page  84). 
It  is  contended  in  reply  that  "all  nations"  means  all  nations  other  than 
the  United  States.  In  order  to  settle  the  dispute  it  was  suggested  that 
(1)  the  last  sentence  of  section  5  of  the  Panama  Canal  Act  should  be  re- 
pealed, and  (2)  the  question  should  be  referred  to  Arbitration.  In  default 
of  one  or  the  other  a  new  difficulty  would  have  arisen  to  disturb  the 
friendship  of  Great  Britain  and  the  United  States  just  at  the  time  when 
the  old  controversies  had  been  laid  to  rest  by  a  series  of  masterly 
negotiations  and  equitable  adjustments.  This  unhappy  consummation 
was  prevented  when  in  1914  Congress  repealed  the  last  sentence  of  the 
above  section  at  the  instance  of  President  Wilson. 

25.   Treaty  of  1914  between  the  United  States 
and  Colombia 

The  United  States  of  America  and  the  RepubHc  of  Colombia 
being  desirous  to  remove  all  the  misunderstandings  growing 
out  of  the  political  events  in  Panama  in  November,  1903; 
to  restore  the  cordial  friendship  that  formerly  characterized  the 
relations  between  the  two  countries,  and  also  to  define  and  regu- 
late their  rights  and  interests  in  respect  of  the  interoceanic 
Canal  which  the  Government  of  the  United  States  is  construct- 
ing across  the  Isthmus  of  Panama,  have  resolved  for  this  purpose 
to  conclude  a  Treaty  and  have  accordingly  appointed  as  their 
Plenipotentiaries:    (Here  follows  a  list  of  names.) 

Who,  after  communicating  to  each  other  their  respective 
full  powers,  which  were  found  to  be  in  due  and  proper  form, 
have  agreed  upon  the  following: 

Article  I 

The  Government  of  the  United  States  of  America,  wishing  to 
put  at  rest  all  controversies  and  differences  with  the  Republic 
of  Colombia  arising  out  of  the  events  from  which  the  present 
situation  on  the  Isthmus  of  Panama  resulted,  express,  in  its 
own  name  and  in  the  name  of  the  people  of  the  United  States, 
sincere  regret  that  anything  should  have  occurred  to  interrupt 
or  to  mar  the  relations  of  cordial  friendship  that  had  so  long 
subsisted  between  the  two  nations. 

The  Government  of  the  Republic  of  Colombia,  in  its  own 
name  and  in  the  name  of  the  Colombian  people,  accepts  this 


92  DOCUMENTS  ON   INTERNATIONAL  LAW 

declaration  in  the  full  assurance  that  every  obstacle  to  the 
restoration  of  complete  harmony  between  the  two  countries 
will  thus  disappear. 

Article  II 

The  Republic  of  Colombia  shall  enjoy  the  following  rights  in 
respect  to  the  interoceanic  Canal  and  the  Panama  Railway: 

1.  The  Republic  of  Colombia  shall  be  at  liberty  at  all  times 
to  transport  through  the  interoceanic  Canal  its  troops,  materials 
of  war,  and  ships  of  war,  even  in  case  of  war  between  Colombia 
and  another  country,  without  paying  any  charges  to  the  United 
States. 

2.  The  products  of  the  soil  and  industry  of  Colombia  passing 
through  the  Canal  as  well  as  the  Colombian  mails,  shall  be 
exempt  from  any  charge  or  dut}^  other  than  those  to  which  the 
products  and  mails  of  the  United  States  may  be  subject.  The 
products  of  the  soil  and  industry  of  Colombia,  such  as  cattle, 
salt,  and  provisions,  shall  be  admitted  to  entry  in  the  Canal 
Zone,  and  likewise  in  the  islands  and  mainland  occupied  or  which 
may  be  occupied  by  the  United  States  as  auxiliary  and  accessory 
thereto,  without  paying  other  duties  or  charges  than  those  pay- 
able by  similar  products  of  the  United  States. 

3.  Colombian  citizens  crossing  the  Canal  Zone  shall,  upon 
production  of  proper  proof  of  their  nationality,  be  exempt  from 
every  toll,  tax,  or  duty  to  which  citizens  of  the  United  States 
are  not  subject. 

4.  During  the  construction  of  the  interoceanic  Canal  and 
afterwards,  whenever  traffic  by  the  Canal  is  interrupted  or 
whenever  it  shall  be  necessary  for  any  other  reason  to  use  the 
railway,  the  troops,  materials  of  war,  products,  the  mails  of 
the  Republic  of  Colombia,  as  above  mentioned,  shall,  even  in 
case  of  war  between  Colombia  and  another  country,  be  trans- 
ported on  the  railway  between  Ancon  and  Cristobal  or  on  any 
other  railway  substituted  therefor,  paying  only  the  same  charges 
and  duties  as  are  imposed  upon  the  troops,  materials  of  war, 
products,  and  mails  of  the  United  States.  The  officers,  agents, 
and  employees  of  the  Government  of  Colombia  shall,  upon 


THE  LAW  OF  PEACE  93 

production  of  proper  proof  of  their  official  character  or  their 
employment,  also  be  entitled  to  passage  on  the  said  railway  on 
the  same  terms  as  officers,  agents,  and  employees  of  the  Govern- 
ment of  the  United  States.  The  provisions  of  this  paragraph 
shall  not,  however,  apply  in  case  of  war  between  Colombia  and 
Panama. 

5.  Coal,  petroleum,  and  sea  salt,  being  the  products  of 
Colombia,  passing  from  the  Atlantic  coast  of  Colombia  to  any 
Colombian  port  on  the  Pacific  coast,  and  vice  versa,  shall  be 
transported  over  the  aforesaid  Railway  free  of  any  charge 
except  the  actual  cost  of  handling  and  transportation,  which 
shall  not  in  any  case  exceed  one  half  of  the  ordinary  freight 
charges  levied  upon  similar  products  of  the  United  States  pass- 
ing over  the  Railway  and  in  transit  from  one  port  to  another 
of  the  United  States. 

Article  III 

The  United  States  of  America  agree  to  pay  to  the  Republic 
of  Colombia,  within  six  months  after  the  exchange  of  the  rati- 
fication of  the  present  Treaty,  the  sum  of  twenty-five  million 
dollars,  gold.  United  States  money. 

Article  IV 

The  Republic  of  Colombia  recognizes  Panama  as  an  inde- 
pendent nation,  and  taking  as  a  basis  the  Colombian  law  of 
June  9,  1855,  agrees  that  the  boundary  shall  be  the  following: 
From  Cape  Tiburon  to  the  headwaters  of  the  Rio  de  la  Miel 
and  following  the  mountain  chain  by  the  ridge  of  Gandi  to  the 
Sierra  de  Chugargun  and  that  of  Mali  going  doA^Ti  by  the  ridges 
of  Nigue  to  the  height  of  Aspave  and  from  thence  to  a  point 
on  the  Pacific,  half  way  between  Cocalito  and  La  Ardita. 

In  consideration  of  this  recognition  the  Government  of  the 
United  States  will,  inamediately  after  the  exchange  of  the  rati- 
fications of  the  present  Treaty,  take  the  necessary  steps  in  order 
to  obtain  from  the  Goverrmient  of  Panama  the  despatch  of  a 
duly  accredited  agent  to  negotiate  and  conclude  with  the 
Government  of  Colombia  a  Treaty  of  Peace  and  Friendship, 


94  DOCUMENTS  ON  INTERNATIONAL  LAW 

Avith  a  view  to  bring  about  the  establishment  of  regular  diplo- 
matic relations  between  Colombia  and  Panama  and  the  adjust- 
ment of  all  questions  of  pecuniary  liability  as  between  the  two 
countries,  in  accordance  with  recognized  principles  of  law  and 
precedents. 

Article  V 

The  present  Treaty  shall  be  approved  and  ratified  by  the 
High  Contracting  Parties  in  conformity  with  their  respective 
laws,  and  the  ratifications  thereof  shall  be  exchanged  in  the 
city  of  Bogota  as  soon  as  may  be  possible.  —  {The  Times, 
May  16,  1914.) 

Note.  —  This  Treaty  has  not  yet  (July,  1914)  been  ratified.  It  cannot 
take  effect  till  ratification. 

26.   Award     of    the    Arbitral    Tribunal    in    the    North    Atlantic 

Fisheries  Dispute  between  Great  Britain  and  the 

United  States,  1910 

A 

Article  I   of  the   Treaty   of  1818,  the  true  Meaning  of  which 
was  in   Question 

Whereas  differences  have  arisen  respecting  the  liberty  claimed 
by  the  United  States  for  the  Inhabitants  thereof,  to  take,  dry 
and  cure  Fish  on  Certain  Coasts,  Bays,  Harbours,  and  Creeks 
of  His  Britannic  Majesty's  Dominions  in  America,  it  is  agreed 
between  the  High  Contracting  Parties,  that  the  Inhabitants  of 
the  said  United  States  shall  have  forever,  in  common  with  the 
Subjects  of  His  Britannic  Majesty,  the  Liberty  to  take  Fish 
of  every  kind  on  that  part  of  the  Southern  Coast  of  New- 
foundland which  extends  from  Cape  Ray  to  the  Rameau 
Islands,  on  the  Western  and  Northern  Coast  of  Newfoundland, 
from  the  said  Cape  Ray  to  the  Quirpon  Islands,  on  the  shores 
of  the  Magdalen  Islands,  and  also  on  the  Coasts,  Bays,  Har- 
bours, and  Creeks  from  Mount  Joly  on  the  Southern  Coast  of 
Labrador,  to  and  through  the  Straits  of  Belleisle  and  thence 
Northwardly  indefinitely  along  the  Coast,  without  prejudice, 
however,  to  any  of  the  exclusive  Rights  of  the  Hudson  Bay 


THE  LAW  OF  PEACE  95 

Company;  and  that  the  American  Fishermen  shall  also  have 
liberty  forever,  to  dry  and  cure  Fish  in  any  of  the  unsettled 
Bays,  Harbours  and  Creeks  of  the  Southern  part  of  the  Coast 
of  Newfoundland  hercabove  described,  and  of  the  Coast  of 
Labrador;  but  so  soon  as  the  same,  or  any  Portion  thereof, 
shall  be  settled,  it  shall  not  be  lawful  for  the  said  Fishermen 
to  dry  or  cure  Fish  at  such  Portion  so  settled,  without  pre- 
vious agreement  for  such  purpose  with  the  Inhabitants,  Propri- 
etors, or  Possessors  of  the  ground. —  And  the  United  States 
hereby  renounce  forever,  any  Liberty  heretofore  enjoyed  or 
claimed  by  the  Inhabitants  thereof,  to  take,  dry,  or  cure  Fish 
on,  or  within  three  marine  Miles  of  any  of  the  Coasts,  Bays, 
Creeks,  or  Harbours  of  His  Britannic  Majesty's  Dominions  in 
America  not  included  within  the  above-mentioned  limits; 
provided,  however,  that  the  American  Fishermen  shall  be 
admitted  to  enter  such  Bays  or  Harbours  for  the  purpose  of 
Shelter  and  of  repairing  Damages  therein,  of  purchasing  Wood, 
and  of  obtaining  Water,  and  for  no  other  purpose  whatever. 
But  they  shall  be  under  such  Restrictions  as  may  be  necessary 
to  prevent  their  taking,  drying  or  curing  Fish  therein,  or  in 
any  other  manner  whatever  abusing  the  Privileges  hereby 
reserved  to  them. 

B 

The  Award  of  the  Arbitrators 

Preamble 

Whereas,  a  Special  Agreement  between  the  United  States 
of  America  and  Great  Britain,  signed  at  Washington  the  27th 
of  January,  1909,  and  confirmed  by  interchange  of  Notes  dated 
the  4th  March,  1909,  was  concluded  in  conformity  with  the 
provisions  of  the  General  Arbitration  Treaty  between  the  United 
States  of  America  and  Great  Britain,  signed  the  4th  April, 
1908  and  ratified  the  4th  June,  1908; 

And  whereas  the  said  Special  Agreement  for  the  submission 
of  the  questions  relating  to  the  fisheries  on  the  North  Atlantic 
Coast  under  the  General  Treaty  of  Arbitration  concluded 
between  the  United  States  and  Great  Britain  on  the  4th  day  of 


96  DOCUMENTS  ON  INTERNATIONAL  LAW 

April,  1908,  is  as  follows:  (Here  follows  the  text  of  the  Agree- 
ment, the  important  points  of  which  can  be  gathered  from  the 
Award) ; 

And  whereas,  the  Parties  to  the  said  Agreement  have  by 
common  accord,  in  accordance  with  Article  V,  constituted  as 
a  Tribunal  of  Arbitration  the  following  Members  of  the  Per- 
manent Court  at  The  Hague:  Mr.  H,  Lammach,  Doctor  of 
Law,  Professor  of  the  University  of  Vienna,  Aulic  Councillor, 
Member  of  the  Upper  House  of  the  Austrian  Parliament;  His 
Excellency  Jonkheer  A.  F.  De  Savornin  Lohman,  Doctor  of  Law, 
Minister  of  State,  Former  Minister  of  the  Interior,  Member  of 
the  Second  Chamber  of  the  Netherlands;  the  Honourable 
George  Gray,  Doctor  of  Laws,  Judge  of  the  United  States  Circuit 
Court  of  Appeals,  former  LTnited  States  Senator:  the  Right 
Honourable  Sir  Charles  Fitzpatrick,  Member  of  the  Pri\^ 
Council,  Doctor  of  Laws,  Chief  Justice  of  Canada ;  the  Honour- 
able Luis  Maria  Drago,  Doctor  of  Law,  former  Minister  of 
Foreign  Affairs  of  the  Argentine  Republic,  Member  of  the  Law 
Academy  of  B uenos- Aires ; 

And  whereas,  the  Agents  of  the  Parties  to  the  said  Agree- 
ment have  duly  and  in  accordance  with  the  terms  of  the 
Agreement  communicated  to  this  Tribunal  their  cases,  coun- 
ter-cases, printed  arguments  and  other  documents; 

And  whereas,  counsel  for  the  Parties  have  fully  presented 
to  this  Tribunal  their  oral  arguments  in  the  sittings  held  be- 
tween the  first  assembling  of  the  Tribunal  on  1st  June,  1910, 
to  the  close  of  the  hearings  on  12th  August,  1910; 

Now,  therefore,  this  Tribunal  having  carefully  considered 
the  said  Agreement,  cases,  counter-cases,  printed  and  oral 
arguments,  and  the  documents  presented  by  cither  side,  after 
due  deliberation  makes  the  following  decisions  and  awards : 

Question  I 

To  what  extent  are  the  following  contentions  or  either  of 
them  justified? 

It  is  contended  on  the  part  of  Great  Britain  that  the  exercise 
of  the  liberty  to  take  fish  referred  to  in  the  said  Article,  which 


THE  LAW  OF  PEACE  97 

the  inhabitants  of  the  United  States  have  forever  in  common 
with  the  subjects  of  His  Britannic  Majesty,  is  subject,  without 
the  consent  of  the  United  States,  to  reasonable  regulation  by 
Great  Britain,  Canada,  or  Newfoundland  in  the  form  of  munici- 
pal laws,  ordinances,  or  rules,  as,  for  example,  to  regulations 
in  respect  of  (1)  the  hours,  days,  or  seasons  when  fish  may  be 
taken  on  the  treaty  coasts;  (2)  the  method,  means,  and  imple- 
ments to  be  used  in  the  taking  of  fish  or  in  the  carrying  on  of 
fishing  operations  on  such  coasts;  (3)  any  other  matters  of  a 
similar  character  relating  to  fishing;  such  regulations  being 
reasonable,  as  being  for  instance  — 

(a)  Appropriate  or  necessary  for  the  protection  and  preser- 
vation of  such  fisheries  and  the  exercise  of  the  rights  of  British 
subjects  therein  and  of  the  liberty  which  by  the  said  Article  I 
the  inhabitants  of  the  United  States  have  therein  in  common 
with  the  British  subjects; 

(6)    Desirable  on  grounds  of  public  order  and  morals; 

(c)  Equitable  and  fair  as  between  local  fishermen  and  the 
inhabitants  of  the  United  States  exercising  the  said  treaty 
hberty,  and  not  so  framed  as  to  give  unfairly  an  advantage  to 
the  former  over  the  latter  class. 

It  is  contended  on  the  part  of  the  United  States  that  the  exer- 
cise of  such  liberty  is  not  subject  to  restraints  or  limitations  by 
Great  Britain,  Canada,  or  Ne%vfoundland  in  the  form  of  munic- 
ipal laws,  ordinances,  or  regulations  in  respect  of  (1)  the  hours, 
days,  or  seasons  when  the  inhabitants  of  the  United  States  may 
take  fish  on  the  treaty  coasts,  or  (2)  the  method,  means,  and 
implements  used  by  them  in  taking  fish  or  in  carrying  on  fish- 
ing operations  on  such  coasts,  or  (3)  any  other  limitations  or 
restraints  of  similar  character  — 

(a)  Unless  they  are  appropriate  and  necessary  for  the  pro- 
tection and  preservation  of  the  common  rights  in  such  fisheries 
and  the  exercise  thereof;  and 

(6)  Unless  they  are  reasonable  in  themselves  and  fair  as 
between  local  fishermen  and  fishermen  coming  from  the  United 
States,  and  not  so  framed  as  to  give  an  advantage  to  the  former 
over  the  latter  class;  and 


98  DOCUMENTS  ON  INTERNATIONAL   LAW 

(c)  Unless  their  appropriateness,  necessity,  reasonableness, 
and  fairness,  be  determined  by  the  United  States  antl  Great 
Britain  by  common  accord,  and  the  United  States  concurs  in 
their  enforcement. 

Question  I,  thus  submitted  to  the  Tribunal,  resolves  itself 
into  two  main  contentions: 

1st.  Whether  the  right  of  regulating  reasonably  the  liberties 
conferred  by  the  Treaty  of  1818  resides  in  Great  Britain; 

2d.  And,  if  such  right  does  so  exist,  whether  such  reasonable 
exercise  of  the  right  is  permitted  to  Great  Britain  without  the 
accord  and  concurrence  of  the  United  States. 

The  Treaty  of  1818  contains  no  explicit  disposition  in  regard 
to  the  right  of  regulation,  reasonable  or  otherwise;  it  neither 
reserves  that  right  in  express  terms,  nor  refers  to  it  in  any  way. 
It  is  therefore  incumbent  on  this  Tribunal  to  answer  the  two 
questions  above  indicated  by  interpreting  the  general  terms  of 
Article  I  of  the  treaty,  and  more  especially  the  words  "the 
inhabitants  of  the  United  States  shall  have,  forever  in  common 
with  the  subjects  of  His  Britannic  Majesty,  the  liberty  to  take 
fish  of  every  kind."  This  interpretation  must  be  conformable 
to  the  general  import  of  the  instrument,  the  general  intention  of 
the  parties  to  it,  the  subject  matter  of  the  contract,  the  expres- 
sions actually  used,  and  the  evidence  submitted. 

Now  in  regard  to  the  preliminary  question  as  to  whether  the 
right  of  reasonable  regulation  resides  in  Great  Britain: 

Considering  that  the  right  to  regulate  the  liberties  conferred 
by  the  Treaty  of  1818  is  an  attribute  of  sovereignty,  and  as 
such  must  be  held  to  reside  in  the  territorial  sovereign,  unless 
the  contrary  be  provided;  and  considering  that  one  of  the 
essential  elements  of  sovereignty  is  that  it  is  to  be  exercised 
within  territorial  limits,  and  that,  failing  proof  to  the  contrary, 
the  territory  is  coterminous  with  the  sovereignty,  it  follows 
that  the  burden  of  the  assertion  involved  in  the  contention  of 
the  United  States  (viz.,  that  the  right  to  regulate  does  not  reside 
independently  in  Great  Britain,  the  territorial  sovereign)  must 
fall  on  the  United  States,  And  for  the  purpose  of  sustaining 
this  burden,  the  United  States  have  put  forward  the  following 


THE  LAW  OF  PEACE  99 

series  of  propositions,  each  one  of  which  must  be  singly  con- 
sidered. 

It  is  contended  by  the  United  States: 

(1)  That  the  French  right  of  fishery  under  the  Treaty  of 

1763  designated  also  as  a  liberty,  was  never  subjected 
to  regulation  by  Great  Britain,  and  therefore  the 
inference  is  warranted  that  the  American  liberties  of 
fisheries  are  similarly  exempted. 

The  Tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  although  the  French  right  designated  in  1713 
merely  "an  allowance,"  (a  term  of  even  less  force  than  used 
in  regard  to  the  American  fishery)  was  nevertheless  converted, 
in  practice,  into  an  exclusive  right,  this  concession  on  the  part 
of  Great  Britain  was  presumably  made  because  France,  before 
1713,  claimed  to  be  the  sovereign  of  Newfoundland,  and,  in 
ceding  the  Island,  had,  as  the  American  argument  says,  "re- 
served for  the  benefit  of  its  subjects  the  rights  to  fish  and  to  use 
the  strand:" 

(6)  Because  the  distinction  between  the  French  and  Ameri- 
can right  is  indicated  by  the  different  wording  of  the  statutes 
for  the  observance  of  treaty  obligations  towards  France  and  the 
United  States,  and  by  the  British  Declaration  of  1783: 

(c)  And,  also,  because  this  distinction  is  maintained  in  the 
Treaty  with  France  of  1904,  concluded  at  a  date  when  the 
American  claim  was  approaching  its  present  stage,  and  by 
which  certain  common  rights  of  regulation  are  recognized  to 
France. 

For  the  further  purpose  of  such  proof  it  is  contended 
by  the  United  States : 

(2)  That  the  liberties  of  fishery,  being  accorded  to  the 

inhabitants  of  the  United  States  "for  ever,"  acquire, 
by  being  in  perpetuity  and  unilateral,  a  character 
exempting  them  from  local  legislation. 

The  Tribunal  is  unable  to  agree  with  this  contention: 
(a)  Because  there  is  no  necessary  connection  between  the 
duration  of  a  grant  and  its  essential  status  in  its  relation  to 


100  DOCUMENTS  ON  INTERNATIONAL  LAW 

local  regulation;  a  right  granted  in  perpetuity  may  yet  be 
subject  to  regulation,  or,  granted  temporarily,  may  yet  be 
exempted  therefrom;  or  being  reciprocal  may  yet  be  unregu- 
lated, or  being  unilateral  may  yet  be  regulated:  as  is  evidenced 
by  the  claim  of  the  United  States  that  the  liberties  of  fishery 
accorded  by  the  Reciprocity  Treaty  of  1854  and  the  Treaty  of 
1871  were  exempt  from  regulation,  though  they  were  neither 
permanent  nor  unilateral; 

(6)  Because  no  peculiar  character  need  be  claimed  for  these 
liberties  in  order  to  secure  their  enjoyment  in  perpetuity,  as 
is  evidenced  by  the  American  negotiators  in  1818  asking  for 
the  insertion  of  the  words  "for  ever."  International  law  in 
its  modern  development  recognizes  that  a  great  number  of 
treaty  obligations  are  not  annulled  by  war,  but  at  most  sus- 
pended by  it; 

(c)  Because  the  liberty  to  dry  and  cure  is,  pursuant  to  the 
terms  of  the  treaty,  provisional  and  not  permanent,  and  is 
nevertheless,  in  respect  of  the  liability  to  regulation,  identical 
in  its  nature  with,  and  never  distinguished  from,  the  liberty  to 
fish. 

For  the  further  purpose  of  such  proof,  the  United 
States  allege: 
(3)  That  the  liberties  of  fishery  granted  to  the  United 
States  constitute  an  international  servitude  in  their 
favour  over  the  territory  of  Great  Britain,  thereby 
involving  a  derogation  from  the  sovereignty  of  Great 
Britain,  the  servient  State,  and  that  therefore  Great 
Britain  is  deprived,  by  reason  of  the  grant,  of  its 
independent  right  to  regulate  the  fishery. 

The  Tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  there  is  no  evidence  that  the  doctrine  of  inter- 
national servitudes  was  one  with  which  either  American  or 
British  statesmen  were  conversant  in  1818,  no  English  publi- 
cists employing  the  term  before  1818,  and  the  mention  of  it  in 
Mr.  Gallatin's  report  being  insufficient; 

(6)  Because  a  servitude  in  the  French  Law,  referred  to  by 


THE  LAW  OF  PEACE  101 

Mr.  Gallatin,   can,  since  the  Code,  be  only  real  and  cannot 
be  personal  (Code  Civil,  art.  686) ; 

(c)  Because  a  servitude  in  international  law  predicates  an 
express  grant  of  a  sovereign  right  and  involves  an  analogy  to 
the  relation  of  a  praedium  dominans  and  a  praedium  serviens; 
whereas  by  the  Treaty  of  1818  one  State  grants  a  liberty  to 
fish,  which  is  not  a  sovereign  right,  but  a  purely  economic  right, 
to  the  inhabitants  of  another  State; 

(d)  Because  the  doctrine  of  international  servitude  in  the 
sense  which  is  now  sought  to  be  attributed  to  it  originated  in 
the  pecuhar  and  now  obsolete  conditions  prevaihng  in  the 
Holy  Roman  Empire  of  which  the  domini  terrae  were  not  fully 
sovereigns;  they  holding  territory  under  the  Roman  Empire, 
subject  at  least  theoretically,  and  in  some  respects  also  prac- 
tically, to  the  courts  of  that  Empire;  their  right  being,  more- 
over, rather  of  a  civil  than  of  a  pubUc  nature,  partaking  more 
of  the  character  of  dominium  than  of  imperium,  and  therefore 
certainly  not  a  complete  sovereignty.  And  because  in  con- 
tradistinction to  this  quasi-sovereignty  with  its  incoherent 
attributes  acquired  at  various  times,  by  various  means,  and  not 
impaired  in  its  character  by  being  incomplete  in  any  one  respect 
or  by  being  Umited  in  favour  of  another  territory  and  its  pos- 
sessor, the  modern  State,  and  particularly  Great  Britain,  has 
never  admitted  partition  of  sovereignty,  owing  to  the  constitu- 
tion of  a  modern  State  requiring  essential  sovereignty  and 
independence; 

(e)  Because  this  doctrine  being  but  Uttle  suited  to  the  prin- 
ciple of  sovereignty  which  prevails  in  States  under  a  system 
of  constitutional  government  such  as  Great  Britain  and  the 
United  States,  and  to  the  present  international  relations  of 
sovereign  States,  has  found  little,  if  any,  support  from  modern 
pubhcists.  It  could  therefore  in  the  general  interest  of  the 
community  of  nations,  and  of  the  Parties  to  this  treaty,  be 
affirmed  by  this  Tribunal  only  on  the  express  evidence  of  an 
international  contract ; 

(/)  Because  even  if  these  Hberties  of  fishery  constituted  an 
international  servitude,  the  servitude  would  derogate  from  the 


102  DOCUMENTS  ON  INTERNATIONAL  LAW 

sovereignty  of  the  servient  State  only  in  so  far  as  the  exercise 
of  the  rights  of  sovereignty  by  the  servient  State  would  be 
contrary  to  the  exercise  of  the  servitude  right  by  the  Dominant 
State.  Whereas  it  is  evident  that,  though  every  regulation  of 
the  fishery  is  to  some  extent  a  limitation,  as  it  puts  hmits  to 
the  exercise  of  the  fishery  at  will,  yet  such  regulations  as  are 
reasonable  and  made  for  the  purpose  of  securing  and  preserving 
the  fishery  and  its  exercise  for  the  common  benefit,  are  clearly 
to  be  distinguished  from  those  restrictions  and  "molestations," 
the  annulment  of  which  was  the  purpose  of  the  American  de- 
mands formulated  by  Mr.  Adams  in  1782,  and  such  regulations 
consequently  carmot  be  held  to  be  inconsistent  with  a  servitude; 

(g)  Because  the  fishery  to  which  the  inhabitants  of  the 
United  States  were  admitted  in  1783,  and  again  in  1818,  was  a 
regulated  fishery,  as  is  evidenced  by  the  following  regulations :  — 

Act  15,  Charles  II,  Cap.  16,  s.  7  (1663)  forbidding  "to  lay 
any  seine  or  other  net  in  or  near  any  harbour  in  Newfoundland, 
whereby  to  take  the  spawn  or  young  fry  of  the  Poor-John,  or 
for  any  other  use  or  uses,  except  for  the  taldng  of  bait  only," 
which  had  not  been  superseded  either  by  the  Order  in  Council 
of  March  10th,  1670,  or  by  the  Statute  10  and  11  Wm.  Ill,  Cap. 
25,  1699.  The  Order  in  Council  provides  expressly  for  the 
obligation  "  to  submit  unto  and  to  observe  all  rules  and  orders 
as  are  now,  or  hereafter  shall  be  estabhshed,"  an  obhgation 
which  cannot  be  read  as  referring  only  to  the  rules  established 
by  this  very  Act,  and  having  no  reference  to  anteceding  rules 
"as  are  now  established."  In  a  similar  way,  the  Statute  of 
1699  preserves  in  force  prior  legislation  conferring  the  freedom 
of  fishery  only  "as  fully  and  freely  as  at  any  time  heretofore." 
The  Order  in  Council,  1670,  provides  that  the  Admirals,  who 
always  were  fishermen,  arriving  from  an  English  or  Welsh  port, 
"see  that  His  Majesty's  rules  and  orders  concerning  the  regula- 
tion of  the  fisheries  are  duly  put  in  execution"  (sec.  13).  Like- 
wise the  Act  10  and  11,  Wm.  Ill,  Cap.  25  (1699)  provides  that 
the  Admirals  do  settle  differences  between  the  fishermen  aris- 
ing in  respect  to  the  places  to  be  assigned  to  the  different  vessels. 
As  to  Nova  Scotia,  the  proclamation  of  1665  ordains  that  no 


THE  LAW  OF  PEACE  103 

one  shall  fish  vvdthout  license;  that  the  Ucensed  fishermen  are 
obhged  "to  observe  all  laws  and  orders  which  now  are  made 
and  published,  or  shall  hereafter  be  made  and  pubUshed  in  this 
jurisdiction,"  and  that  they  shall  not  fish  on  the  Lord's  day 
and  shall  not  take  fish  at  the  time  they  come  to  spawn.  The 
judgement  of  the  Chief  Justice  of  Newfoundland,  October  26th, 
1820,  is  not  held  by  the  Tribunal  sufficient  to  set  aside  the 
proclamations  referred  to.  After  1783,  the  Statute  26  Geo. 
Ill,  Cap.  26,  1786,  forbids  "the  use,  on  the  shores  of  Newfound- 
land, of  seines  or  nets  for  catching  cod  by  hauhng  on  shore  or 
taking  into  boat,  with  meshes  less  than  4  inches";  a  prohibi- 
tion which  cannot  be  considered  as  Umited  to  the  bank  fishery. 
The  act  for  regulating  the  fisheries  of  New  Brunswick,  1793, 
which  forbids  "the  placing  of  nets  or  seines  across  any  cove  or 
creek  in  the  Province  so  as  to  obstruct  the  natural  course  of 
fish,"  and  which  makes  specific  provision  for  fishing  in  the 
Harbour  of  St.  John,  as  to  the  manner  and  time  of  fishing, 
cannot  be  read  as  being  limited  to  fishing  from  the  shore.  The 
act  for  regulating  the  fishing  on  the  coast  of  Northumberland 
(1799)  contains  very  elaborate  dispositions  concerning  the  fisher- 
ies in  the  bay  of  Miramichi  which  were  continued  in  1823,  1829, 
and  1834.  The  Statutes  of  Lower  Canada,  1788  and  1807, 
forbid  the  throwing  overboard  of  ofTal.  The  fact  that  these 
acts  extend  the  prohibition  over  a  greater  distance  than  the 
first  marine  league  from  the  shore  may  make  them  non-opera- 
tive against  foreigners  without  the  territorial  Umits  of  Great 
Britain,  but  is  certainly  no  reason  to  deny  their  obUgatory 
character  for  foreigners  within  these  limits; 

{h)  Because  the  fact  that  Great  Britain  rarely  exercised  the 
right  of  regulation  in  the  period  immediately  succeeding  1818 
is  to  be  ex-plained  by  various  circimistances  and  is  not  evidence 
of  the  non-existence  of  the  right; 

(i)  Because  the  words  "in  common  with  British  subjects" 
tend  to  confirm  the  opinion  that  the  inhabitants  of  the  United 
States  were  admitted  to  a  regulated  fishery; 

(j)  Because  the  Statute  of  Great  Britain,  1819,  which  gives 
legislative  sanction  to  the  Treaty  of  1818,  provides  for  the 


104  DOCUMENTS  ON   INTERNATIONAL  LAW 

making  of  "regulations  with  relation  to  the  taking,  drying  and 
curing  of  fish  by  inhabitants  of  the  United  States  in  'common.'" 

For  the  purpose  of  such  proof  it  is  further  contended 
by  the  United  States,  in  this  latter  connection: 
(4)  That  the  words,  "in  common  with  British  subjects" 
used  in  the  Treaty  should  not  be  held  as  importing  a 
common  subjection  to  regulation,  but  as  intending  to 
negative  a  possible  pretension  on  the  part  of  the  in- 
habitants of  the  United  States  to  liberties  of  fishery 
exclusive  of  the  right  of  British  subjects  to  fish. 

The  Tribunal  is  unable  to  agree  with  this  contention : 
(a)  Because  such  an  interpretation  is  inconsistent  with  the 
historical  basis  of  the  American  fishing  Uberty.  The  gromid 
on  which  Mr.  Adams  founded  the  American  right  in  1782  was 
that  the  people  then  constituting  the  United  States  had  always, 
when  still  under  British  rule,  a  part  in  these  fisheries  and  that 
they  must  continue  to  enjoy  their  past  right  in  the  future.  He 
proposed  "that  the  subjects  of  His  Britannic  Majesty  and  the 
people  of  the  United  States  shall  continue  to  enjoy  unmolested 
the  right  to  take  fish  .  .  ,  where  the  inhabitants  of  both  comi- 
tries  used,  at  any  time  heretofore,  to  fish."  The  theory  of  the 
partition  of  the  fisheries,  which  by  the  American  negotiators 
had  been  advanced  with  so  much  force,  negatives  the  assump- 
tion that  the  United  States  could  ever  pretend  to  an  exclusive 
right  to  fish  on  the  British  shores;  and  to  insert  a  special  dis- 
position to  that  end  would  have  been  wholly  superfluous; 

(h)  Because  the  words  "in  common"  occur  in  the  same  con- 
nexion in  the  Treaty  of  1818  as  in  the  Treaties  of  1854  and  1871. 
It  will  certainly  not  be  suggested  that  in  these  Treaties  of  1854 
and  1871  the  American  negotiators  meant  by  inserting  the  words 
"in  common"  to  iniply  that  without  these  words  American 
citizens  would  be  precluded  from  the  right  to  fish  on  their  own 
coasts  and  that,  on  American  shores,  British  subjects  should 
have  an  exclusive  privilege.  It  would  have  been  the  very 
opposite  of  the  concept  of  territorial  waters  to  suppose  that, 
without  a  special  treaty-provision,  British  subjects  could  be 


THE  LAW  OF  PEACE  105 

excluded  from  fishing  in  British  waters.     Therefore  that  can- 
not have  been  the  scope  and  the  sense  of  the  words ' '  in  common ' ' ; 

(c)  Because  the  words  "in  common"  exclude  the  supposition 
that  American  inhabitants  were  at  liberty  to  act  at  will  for  the 
purpose  of  taking  fish,  without  any  regard  to  the  co-existing 
rights  of  other  persons  entitled  to  do  the  same  thing;  and 
because  these  words  admit  them  only  as  members  of  a  social 
community,  subject  to  the  ordinary  duties  binding  upon  citizens 
of  that  community,  as  to  the  regulations  made  for  the  common 
benefit;  thus  avoiding  the*  "bellum  omnium  contra  omnes" 
which  would  otherwise  arise  in  the  exercise  of  this  industry; 

(d)  Because  these  words  are  such  as  would  naturally  suggest 
themselves  to  the  negotiators  of  1818,  if  their  intention  had 
been  to  express  a  common  subjection  to  regulations  as  well  as 
a  common  right. 

In  the  course  of  the  argument  it  has  also  been  alleged 
by  the  United  States: 
(5)  That  the  Treaty  of  1818  should  be  held  to  have  en- 
tailed a  transfer  or  partition  of  sovereignty,  in  that  it 
must  in  respect  to  the  liberties  of  fishery  be  inter- 
preted in  its  relation  to  the  Treaty  of  1783;  and  that 
this  latter  treaty  was  an  act  of  partition  of  sovereignty 
and  of  separation,  and  as  such  was  not  annulled  by  the 
war  of  1812. 

Although  the  Tribunal  is  not  called  upon  to  decide  the  issue 
whether  the  Treaty  of  1783  was  a  treaty  of  partition  or  not, 
the  questions  involved  therein  having  been  set  at  rest  by  the 
subsequent  Treaty  of  1818,  nevertheless  the  Tribunal  could 
not  forbear  to  consider  the  contention  on  account  of  the  im- 
portant bearing  the  controversy  has  upon  the  true  interpreta- 
tion of  the  Treaty  of  1818.  In  that  respect  the  Tribunal  is 
of  opinion: 

(a)  That  the  right  to  take  fish  was  accorded  as  a  condition 
of  peace  to  a  foreign  people;  wherefore  the  British  negotiators 
refused  to  place  the  right  of  British  subjects  on  the  same  foot- 
ing with  those  of  American  inhabitants;   and  further,  refused 


106  DOCUMENTS  ON  INTERNATIONAL  LAW 

to  insert  the  words  also  proposed  by  Mr.  Adams —  "continue 
to  enjoy"  —  in  the  second  branch  of  Art.  Ill  of  the  Treaty  of 
1783; 

(6)  That  the  Treaty  of  1818  was  in  different  terms,  and  very 
different  in  extent,  from  that  of  1783,  and  was  made  for  dif- 
ferent considerations.     It  was,  in  other  words,  a  new  grant. 

For  the  purpose  of  such  proof  it  is  further  contended 
by  the  United  States: 

(6)  That  as  contemporary  commercial  treaties  contain 
express  provisions  for  submitting  foreigners  to  local 
legislation  and  the  Treaty  of  1818. contains  no  such 
provision,  it  should  be  held,  a  contrario,  that  inhabi- 
tants of  the  United  States  exercising  these  liberties 
are  exempt  from  regulation. 

The  Tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  the  commercial  treaties  contemplated  did  not 
admit  foreigners  to  all  and  equal  rights,  seeing  that  local  leg- 
islation excluded  them  from  many  rights  of  importance,  e.g., 
that  of  holding  land;  and  the  purport  of  the  provisions  in  ques- 
tion consequently  was  to  preserve  these  discriminations.  But 
no  such  discriminations  existing  in  the  common  enjoyment  of 
the  fishery  by  American  and  British  fishermen,  no  such  provi- 
sion was  required; 

(6)  Because  no  proof  is  furnished  of  similar  exemptions  of 
foreigners  from  local  legislation  in  default  of  treaty  stipula- 
tions subjecting  them  thereto; 

(c)  Because  no  such  express  provision  for  subjection  of  the 
nationals  of  either  Party  to  local  law  was  made  either  in  this 
Treaty,  in  respect  to  their  reciprocal  admission  to  certain  terri- 
tories as  agreed  in  Art.  Ill,  or  in  Art.  Ill  of  the  Treaty  of  1794; 
although  such  subjection  was  clearly  contemplated  by  the 
Parties. 

For  the  purpose  of  such  proof  it  is  further  contended 
by  the  United  States: 

(7)  That,  as  the  liberty  to  dry  and  cure  on  the  treaty 
coast  and  to  enter  bays  and  harbours  on  the  non-treaty 


THE  LAW  OF  PEACE  107 

coasts  are  both  subjected  to  conditions,  and  the  latter 
to  specific  restrictions,  it  should  therefore  be  held  that 
the  hberty  to  fish  should  be  subjected  to  no  restric- 
tions, as  none  are  provided  for  in  the  treaty. 

The  Tribunal  is  unable  to  apply  the  principle  of  "expressio 
unius  exclusio  alterius"  to  this  case: 

(a)  Because  the  conditions  and  restrictions  as  to  the  liberty 
to  dry  and  cure  on  the  shore  and  to  enter  the  harbours  are 
hmitations  of  the  rights  themselves,  and  not  restrictions  of  their 
exercise.  Thus  the  right  to  dry  and  cure  is  Hmited  in  dura- 
tion, and  the  right  to  enter  bays  and  harbours  is  Hmited  to 
particular  purposes; 

(h)  Because  these  restrictions  of  the  right  to  enter  bays  and 
harbours  applying  solely  to  American  fishermen  must  have 
been  expressed  in  the  treaty,  whereas  regulations  of  the  fishery, 
applying  equally  to  American  and  British,  are  made  by  right 
of  territorial  sovereignty. 

For  the  purpose  of  such  proof  it  has  been  contended  by 
the  United  States: 
(8)  That  Lord  Bathurst  in  1815  mentioned  the  American 
right  under  the  Treaty  of  1783  as  a  right  to  be  exer- 
cised "at  the  discretion  of  the  United  States";  and 
that  this  should  be  held  as  to  be  derogatory  to  the 
claim  of  exclusive  regulation  by  Great  Britain. 

But  the  Tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  these  words  implied  only  the  necessity  of  an 
express  stipulation  for  any  liberty  to  use  foreign  territory  at 
the  pleasure  of  the  grantee,  without  touching  any  question 
as  to  regulation; 

(h)  Because  in  this  same  letter  Lord  Bathurst  characterized 
this  right  as  a  poUcy  "temporary  and  experimental,  depending 
on  the  use  that  might  be  made  of  it,  on  the  condition  of  the 
islands  and  places  where  it  was  to  be  exercised,  and  the  more 
general  conveniences  or  inconveniences  from  a  military,  naval 
and  commercial  point  of  view";   so  that  it  cannot  have  been 


108  DOCUMENTS  ON   INTERNATIONAL  LAW 

his  intention  to  acknowledge  the  exclusion  of  British  interfer- 
ence ^v^th  this  right; 

(c)  Because  Lord  Bathurst  in  his  note  to  Governor  Sir  C. 
Hamilton  in  1819  orders  the  Governor  to  take  care  that  the 
American  fishery  on  the  coast  of  Labrador  })e  carried  on  in  the 
same  manner  as  previous  to  the  late  war;  showing  that  he  did 
not  interpret  the  treaty  just  signed  as  a  grant  conveying  abso- 
lute immunity  from  interference  with  the  American  fishery 
right. 

For  the  purpose  of  such  proof  it  is  further  contended 
by  the  United  States: 
(9)  That  on  various  other  occasions  following  the  con- 
clusion of  the  treaty,  as  evidenced  by  official  cor- 
respondence, Great  Britain  made  use  of  expressions 
inconsistent  with  the  claim  to  a  right  of  regulation. 

The  Tribunal,  unwilling  to  invest  such  expressions  with  an 
importance  entitling  them  to  effect  the  general  question,  con- 
siders that  such  conflicting  or  inconsistent  expressions  as  have 
been  ex"posed  on  either  side  are  sufficiently  explained  by  their 
relations  to  ephemeral  phases  of  a  controversy  of  almost  secu- 
lar duration,  and  should  be  held  to  be  without  direct  effect  on 
the  principal  and  present  issues. 

Now  with  regard  to  the  second  contention  involved  in  Ques- 
tion I,  as  to  whether  the  right  of  regulation  can  be  reasonably 
exercised  by  Great  Britain  without  the  consent  of  the  United 
States : 

Considering  that  the  recognition  of  a  concurrent  right  of 
consent  in  the  United  States  would  affect  the  independence  of 
Great  Britain,  which  would  become  dependent  on  the  Govern- 
ment of  the  United  States  for  the  exercise  of  its  sovereign  right 
of  regulation,  and  considering  that  such  a  co-dominium  would 
be  contrary  to  the  constitution  of  both  sovereign  States;  the 
burden  of  proof  is  imposed  on  the  United  States  to  show  that 
the  independence  of  Great  Britain  was  thus  impaired  by 
international  contract  in  1818  and  that  a  co-dominium  was 
created. 


THE  LAW  OF  PEACE  109 

For  the  purpose  of  such  proof  it  is  contended  by  the 
United  States: 
(10)  That  a  concurrent  right  to  co-operate  in  the  making 
and  enforcement  of  regulations  is  the  only  possible  and 
proper  security  to  their  inhabitants  for  the  enjoyment 
of  their  Uberties  of  fishery,  and  that  such  a  right  must 
be  held  to  be  impUed  in  the  grant  of  those  liberties  by 
the  Treaty  under  interpretation. 

The  Tribunal  is  miable  to  accede  to  this  claim  on  the  ground 
of  a  right  so  impHed : 

(a)  Because  every  State  has  to  execute  the  obligations 
incurred  by  treaty  bona  fide,  and  is  urged  thereto  by  the 
ordinary  sanctions  of  international  law  in  regard  to  observance 
of  treaty  obUgations.  Such  sanctions  are,  for  instance,  appeal 
to  pubUc  opinion,  pubUcation  of  correspondence,  censure  by 
parUamentary  vote,  demand  for  arbitration  with  the  odimn 
attendant  on  a  refusal  to  arbitrate,  rupture  of  relations, 
reprisal,  etc.  But  no  reason  has  been  shown  why  this  treaty, 
in  this  respect,  should  be  considered  as  different  from  every 
other  treaty,  under  which  the  right  of  a  State  to  regulate 
the  action  of  foreigners  admitted  by  it  on  its  territory  is 
recognized; 

(b)  Because  the  exercise  of  such  a  right  of  consent  by  the 
United  States  would  predicate  an  abandonment  of  its  inde- 
pendence in  this  respect  by  Great  Britain,  and  the  recognition 
by  the  latter  of  a  concurrent  right  of  regulation  in  the  United 
States.  But  the  treaty  conveys  only  a  hberty  to  take  fish  in 
common,  and  neither  directly  nor  indirectly  conveys  a  joint 
right  of  regulation; 

(c)  Because  the  treaty  does  not  convey  a  common  right  of 
fishery  but  a  hberty  to  fish  in  common.  This  is  evidenced  by 
the  attitude  of  the  United  States  Government  in  1823,  with 
respect  to  the  relations  of  Great  Britain  and  France  in  regard 
to  the  fishery; 

(d)  Because  if  the  consent  of  the  United  States  were  requisite 
for  the  fishery  a  general  veto  would  be  accorded  them,  the  full 


no  DOCUMENTS  ON  INTERNATIONAL  LAW 

exercise  of  which  would  be  socially  subversive  and  would  lead 
to  the  consequence  of  an  unrcgulatable  fishery; 

(e)  Because  tlie  United  States  cannot  by  assent  give  legal 
force  and  validity  to  British  legislation; 

(/)  Because  the  liberties  to  take  fisli  in  British  territorial 
waters  and  to  dry  and  cure  fish  on  land  in  British  territory  are 
in  principle  on  the  same  footing;  but  in  practice  a  right  of 
co-operation  in  the  elaboration  and  enforcement  of  regulations 
in  regard  to  the  latter  liberty  (drying  and  curing  fish  on  land) 
is  unrealizable. 

In  any  event,  Great  Britain  as  the  local  sovereign,  has  the 
duty  of  preserving  and  protecting  the  fisheries.  In  so  far  as 
it  is  necessary  for  that  purpose,  Great  Britain  is  not  entitled 
but  obhged,  to  provide  for  the  protection  and  preservation  of 
the  fisheries;  always  remembering  that  the  exercise  of  this 
right  of  legislation  is  limited  by  the  obligation  to  execute  the 
treaty  in  good  faith.  This  has  been  admitted  by  counsel  and 
recognized  by  Great  Britain  in  Umiting  the  right  of  regulation 
to  that  of  reasonable  regulation.  The  inherent  defect  of  this 
limitation  of  reasonableness,  without  any  sanction  except  in 
diplomatic  remonstrance,  has  been  supplied  by  the  submission 
to  arbitral  award  as  to  existing  regulations  in  accordance  with 
Arts.  II  and  III  of  the  Special  Agreement,  and  as  to  further 
regulation  by  the  obUgation  to  submit  their  reasonableness  to 
an  arbitral  test  in  accordance  with  Art.  IV  of  the  Agreement. 

It  is  finally  contended  by  the  United  States: 

That  the  United  States  did  not  expressly  agree  that  the 
hberty  granted  to  them  could  be  subjected  to  any  restriction 
that  the  grantor  might  choose  to  impose  on  the  ground  that  in 
her  judgement  such  restriction  was  reasonable.  And  that 
while  admitting  that  all  laws  of  a  general  character,  controlling 
the  conduct  of  men  within  the  territory  of  Great  Britain,  are 
effective,  binding,  and  beyond  objection  by  the  United  States, 
and  competent  to  be  made  upon  the  sole  determination  of  Great 
Britain  or  her  colony,  without  accountability  to  anyone  whom- 
soever;  yet  there  is  somewhere  a  hne,  beyond  which  it  is  not 


THE  LAW  OF  PEACE  111 

competent  for  Great  Britain  to  go,  or  beyond  which  she  cannot 
rightfully  go,  because  to  go  beyond  it  would  be  an  invasion  of 
the  right  granted  to  the  United  States  in  1818.  That  the  legal 
effect  of  the  grant  of  1818  was  not  to  leave  the  determination 
as  to  where  that  Une  is  to  be  drawn  to  the  uncontrolled  judge- 
ment of  the  grantor,  either  upon  the  grantor's  consideration  as 
to  what  would  be  a  reasonable  exercise  of  its  sovereignty  over 
the  British  Empire,  or  upon  the  grantor's  consideration 
of  what  would  be  a  reasonable  exercise  thereof  towards  the 
grantee. 

But  this  contention  is  founded  on  assumptions,  which  this 
Tribunal  cannot  accept  for  the  following  reasons  in  addition 
to  those  already  set  forth: 

(a)  Because  the  hne  by  which  the  respective  rights  of  both 
Parties  accruing  out  of  the  treaty  are  to  be  circumscribed, 
can  refer  only  to  the  right  granted  by  the  treaty;  that  is  to 
say  to  the  liberty  of  taking,  drying  and  curing  fish  by  Ameri- 
can inhabitants  in  certain  British  waters  in  common  with 
British  subjects,  and  not  to  the  exercise  of  rights  of  legislation 
by  Great  Britain  not  referred  to  in  the  treaty; 

(b)  Because  a  hne  which  would  hmit  the  exercise  of  sover- 
eignty of  a  State  within  the  limits  of  its  own  territory  can  be 
dra^vn  only  on  the  ground  of  express  stipulation,  and  not  by 
impHcation  from  stipulations  concerning  a  different  subject- 
matter  ; 

(c)  Because  the  Hne  in  question  is  drawn  according  to  the 
principles  of  international  law  that  treaty  obHgations  are  to 
be  executed  in  perfect  good  faith,  therefore  excluding  the  right 
to  legislate  at  will  concerning  the  subject-matter  of  the  treaty, 
and  limiting  the  exercise  of  sovereignty  of  the  States  bound  by 
a  treaty  with  respect  to  that  subject-matter  to  such  acts  as  are 
consistent  with  the  treaty; 

(d)  Because  on  a  true  construction  of  the  treaty  the  ques- 
tion does  not  arise  whether  the  United  States  agreed  that  Great 
Britain  should  retain  the  right  to  legislate  with  regard  to  the 
fisheries  in  her  own  territory;  but  whether  the  treaty  contains 
an  abdication  by  Great  Britain  of  the  right  which  great  Brit- 


112  DOCUMENTS  ON  INTERNATIONAL  LAW 

ain,  as  the  sovereign  power,  undoubtedly  possessed  when  the 
treaty  was  made,  to  regulate  those  fisheries; 

(e)  Because  the  right  to  make  reasonable  regulations,  not 
inconsistent  with  the  obligations  of  the  treaty,  which  is  all  that 
is  claimed  by  Great  Britain,  for  a  fishery  which  both  Parties 
admit  requires  regulation  for  its  preservation,  is  not  a  restric- 
tion of  or  an  invasion  of  the  liberty  granted  to  the  inhabitants 
of  the  United  States.  This  grant  does  not  contain  words  to 
justify  the  assumption  that  the  sovereignty  of  Great  Britain 
upon  its  own  territory  was  in  any  way  affected ;  nor  can  words 
be  found  in  the  treaty  transferring  any  part  of  that  sovereignty 
to  the  United  States.  Great  Britain  assumed  only  duties  with 
regard  to  the  exercise  of  its  sovereignty.  The  sovereignty  of 
Great  Britain  over  the  coastal  waters  and  territory  of  New- 
foundland remains  after  the  treaty  as  unimpaired  as  it  was 
before.  But  from  the  treaty  results  an  obligatory  relation 
whereby  the  right  of  Great  Britain  to  exercise  its  right  of  sover- 
eignty by  making  regulations  is  limited  to  such  regulations  as 
are  made  in  good  faith,  and  are  not  in  violation  of  the  treaty; 

(/)  Finally  to  hold  that  the  United  States,  the  grantee  of 
the  fishing  right,  has  a  voice  in  the  preparation  of  fishery  legis- 
lation involves  the  recognition  of  a  right  in  that  country  to 
participate  in  the  internal  legislation  of  Great  Britain  and  her 
Colonies,  and  to  that  extent  would  reduce  these  countries  to  a 
state  of  dependence. 

While  therefore  unable  to  concede  the  claim  of  the  LTnited 
States  as  based  on  the  treaty,  this  Tribunal  considers  that 
such  claim  has  been  and  is  to  some  extent,  conceded  in  the 
relations  now  existing  b(>tween  the  two  Parties.  Whatever 
may  have  been  the  situation  under  the  Treaty  of  1818  standing 
alone,  the  exercise  of  the  right  of  regulation  inherent  in  Great 
Britain  has  been,  and  is,  limited  by  the  repeated  recognition 
of  the  obligations  already  referred  to,  by  the  limitations  and 
liabilities  accepted  in  the  Special  Agreement,  by  the  unequivocal 
position  assumed  by  Great  Britain  in  the  presentation  of  its 
case  before  this  Tribunal,  and  by  the  consequent  view  of  this 
Tribunal  that  it  would  be  consistent  with  all  the  circumstances, 


THE  LAW  OF  PEACE  113 

as  revealed  by  this  record,  as  to  the  duty  of  Great  Britain,  that 
she  should  submit  the  reasonableness  of  any  future  regulation 
to  such  an  impartial  arbitral  test,  affording  full  opportunity 
therefor,  as  is  hereafter  recommended  under  the  authority  of 
Article  IV  of  the  Special  Agreement,  whenever  the  reasonable- 
ness of  any  regulation  is  objected  to  or  challenged  by  the  United 
States  in  the  manner,  and  within  the  time  hereinafter  specified 
in  the  said  recommendation. 

Now  therefore  this  Tribunal  decides  and  awards  as  follows: 

The  right  of  Great  Britain  to  make  regulations  without  the 
consent  of  the  United  States,  as  to  the  exercise  of  the  liberty 
to  take  fish  referred  to  in  Article  I  of  the  Treaty  of  October  20th, 
1818,  in  the  form  of  municipal  laws,  ordinances  or  rules  of 
Great  Britain,  Canada  or  Newfoundland  is  inherent  to  the 
sovereignty  of  Great  Britain. 

The  exercise  of  that  right  by  Great  Britain  is,  however, 
limited  by  the  said  treaty  in  respect  of  the  said  liberties  therein 
granted  to  the  inhabitants  of  the  United  States  in  that  such 
regulations  must  be  made  bona  fide  and  must  not  be  in  violation 
of  the  said  treaty. 

Regulations  which  are  (1)  appropriate  or  necessary  for  the 
protection  and  preservation  of  such  fisheries,  or  (2)  desirable 
or  necessary  on  grounds  of  public  order  and  morals  without 
unnecessarily  interfering  with  the  fishery  itself,  and  in  both 
cases  equitable  and  fair  as  between  local  and  American  fisher- 
men, and  not  so  framed  as  to  give  unfairly  an  advantage  to  the 
former  over  the  latter  class,  are  not  inconsistent  with  the 
obligation  to  execute  the  treaty  in  good  faith,  and  are  there- 
fore reasonable  and  not  in  violation  of  the  treaty. 

For  the  decision  of  the  question  whether  a  regulation  is  or 
is  not  reasonable,  as  being  or  not  in  accordance  with  the  dis- 
positions of  the  treaty  and  not  in  violation  thereof,  the  Treaty 
of  1818  contains  no  special  provision.  The  settlement  of  differ- 
ences in  this  respect  that  might  arise  thereafter  was  left  to  the 
ordinary  means  of  diplomatic  intercourse.  By  reason,  however, 
of  the  form  in  which  Question  I  is  put,  and  by  further  reason 
of  the  admission  of  Great  Britain  by  her  counsel  before  this 


114  DOCUMENTS  ON  INTERNATIONAL  LAW 

Tribunal  tliat  it  is  not.  now  for  either  of  tlie  Parties  to  the  treaty 
to  determine  the  reasonableness  of  any  regulation  made  by 
Great  Britain,  Canada,  or  Newfoundland,  the  reasonableness  of 
any  such  regulation,  if  contested,  must  be  decided  not  by  either 
of  the  Parties,  but  by  an  impartial  authority  in  accordance  with 
the  principles  hereinabove  laid  down,  and  in  the  manner  pro- 
posed in  the  recommendations  made  by  the  Tribunal  in  virtue 
of  Article  IV  of  the  Agreement. 

The  Tribunal  further  decides  that  Article  IV  of  the  Agree- 
ment is,  as  stated  by  counsel  of  the  respective  Parties  at  the 
argument,  permanent  in  its  effect,  and  not  terminable  by  the 
expiration  of  the  General  Arbitration  Treaty  of  1908,  between 
Great  Britain  and  the  United  States. 

In  execution,  therefore,  of  the  responsibilities  imposed  upon 
this  Tribunal  in  regard  to  Articles  II,  III  and  IV  of  the  Special 
Agreement,  we  hereby  pronounce  in  their  regard  as  follows: 

As  to  Article  II 

Pursuant  to  the  provisions  of  this  Article,  hereinbefore  cited, 
either  Party  has  called  the  attention  of  this  Tribunal  to  acts  of 
the  other  claimed  to  be  inconsistent  with  the  true  interpretation 
of  the  Treaty  of  1818. 

But  in  response  to  a  request  from  the  Tribunal,  recorded  in 
Protocol  No.  XXVI  of  19th  July,  for  an  exposition  of  the 
grounds  of  such  objections,  the  Parties  replied  as  reported  in 
Protocal  No.  XXX  of  28th  July  to  the  following  effect: 

His  Majesty's  Government  considered  that  it  would  be  un- 
necessary to  call  upon  the  Tribunal  for  an  opinion  under  the 
second  clause  of  Article  II,  in  regard  to  the  executive  act  of 
the  United  States  of  America  in  sending  warships  to  the  terri- 
torial waters  in  question,  in  view  of  the  recognized  motives  of 
the  United  States  of  America  in  taking  this  action  and  of  the 
relations  maintained  by  their  representatives  with  the  local 
authorities.  And  this  being  the  sole  act  to  which  the  atten- 
tion of  this  Tribunal  has  been  called  by  His  Majesty's  Govern- 
ment, no  further  action  in  their  behalf  is  required  from  this 
Tribunal  under  Article  II. 


THE  LAW  OF  PEACE  115 

The  United  States  of  America  presented  a  statement  in 
which  tlieir  claim  that  specific  provisions  of  certain  legislative 
and  executive  acts  of  the  Governments  of  Canada  and  New- 
foundland were  inconsistent  with  the  true  interpretation  of 
the  Treaty  of  1818  was  based  on  the  contention  that  these 
provisions  were  not  "reasonable"  within  the  meaning  of 
Question  I. 

After  calling  upon  this  Tribunal  to  express  an  opinion  on 
these  acts,  pursuant  to  the  second  clause  of  Article  II,  the 
United  States  of  America  pointed  out  in  that  statement  that 
under  Article  III  any  question  regarding  the  resonableness  of 
any  regulation  might  be  referred  by  the  Tribunal  to  a  Commis- 
sion of  expert  specialists,  and  expressed  an  intention  of  asking 
for  such  reference  under  certain  circumstances. 

The  Tribunal  having  carefully  considered  the  counter-state- 
ment presented  on  behalf  of  Great  Britain  at  the  session  of 
August  2nd,  is  of  opinion  that  the  decision  on  the  reasonableness 
of  these  regulations  requires  expert  information  about  the  fish- 
eries themselves  and  an  examination  of  the  practical  effect  of  a 
great  number  of  these  provisions  in  relation  to  the  conditions 
surrounding  the  exercise  of  the  liberty  of  fishery  enjoyed  by  the 
inhabitants  of  the  United  States,  as  contemplated  by  Article 
III.  No  further  action  on  behalf  of  the  United  States  is  there- 
fore required  from  this  Tribunal  under  Article  II. 

As  to  Article  III 

As  provided  in  Article  III,  hereinbefore  cited  and  above 
referred  to,  "any  question  regarding  the  reasonableness  of 
any  regulation,  or  otherwise,  which  requires  an  examination  of 
the  practical  effect  of  any  provisions  surrounding  the  exercise 
of  the  liberty  of  fishery  enjoyed  by  the  inhabitants  of  the  United 
States,  or  which  requires  expert  information  about  the  fisheries 
themselves  may  be  referred  by  this  Tribunal  to  a  Commission 
of  expert  specialists ;  one  to  be  designated  by  each  of  the  Parties 
hereto  and  the  third,  who  shall  not  be  a  national  of  either  Party, 
to  be  designated  by  the  Tribunal." 

The  Tribunal  now  therefore  calls  upon  the  Parties  to  designate 


116  DOCUMENTS  ON   INTERNATIONAL  LAW 

within  one  month  tlieir  national  Commissioners  for  tlie  expert 
examination  of  the  questions  submitted. 

As  the  tliird  non-national  Commissioner  this  Tribunal  desig- 
nates Doctor  P.  P.  C.  Hoek,  Scientific  Adviser  for  the  Fisheries 
of  the  Netherlands,  and  if  any  necessity  arises  therefor  a  sub- 
stitute may  be  appointed  by  the  President  of  this  Tribunal. 

After  a  reasonable  time,  to  be  agreed  on  by  the  Parties,  for 
the  expert  Commission  to  arrive  at  a  conclusion,  by  conference, 
or,  if  necessary,  by  local  inspection,  the  Tribunal  shall,  if  con- 
voked by  the  President  at  the  request  of  either  Party,  thereupon 
at  the  earliest  convenient  date,  reconvene  to  consider  the  report 
of  the  Commission,  and  if  it  be  on  the  whole  unanimous  shall 
incorporate  it  in  the  award.  If  not  on  the  whole  unanimous, 
i.e.,  on  all  points  which  in  the  opinion  of  the  Tribunal  are  of 
essential  importance,  the  Tribunal  shall  make  its  award  as  to  the 
regulations  concerned  after  consideration  of  the  conclusions  of  the 
expert  Commisssioner  and  after  hearing  argument  by  counsel. 

But  while  recognizing  its  responsibilities  to  meet  the  obliga- 
tions imposed  on  it  under  Article  III  of  the  Special  Agreement, 
the  Tribunal  hereby  recommends  as  an  alternative  to  having 
recourse  to  a  reconvention  of  this  Tribunal,  that  the  Parties 
should  accept  the  unanimous  opinion  of  the  Commission  or  the 
opinion  of  the  non-national  Commissioner  on  any  points  in 
dispute  as  an  arbitral  award  rendered  under  the  provisions  of 
Chapter  IV  of  the  Hague  Convention  of  1907. 

As  to  Article  IV 

Pursuant  to  the  provisions  of  this  Article,  hereinbefore  cited, 
this  Tribunal  recommends  for  the  consideration  of  the  Parties 
the  following  rules  and  method  of  procedure  under  which  all 
questions  which  may  arise  in  the  future  regarding  the  exercise 
of  the  liberties  above  referred  to  may  be'  determined  in  accord- 
ance with  the  principles  laid  down  in  this  award. 

1 

All  future  municipal  laws,  ordinances  or  rules  for  the  regula- 
tion of  the  fishery  by  Great  Britain  in  respect  of  (1)  the  hours, 


THE  LAW  OF  PEACE  117 

days  or  seasons  when  fish  may  be  taken  on  the  Treaty  coasts; 
(2)  the  method,  means  and  implements  used  in  the  taking  of 
fish  or  in  carrying  on  fishing  operations;  (3)  any  other  regula- 
tion of  a  similar  character  shall  be  published  in  the  London 
Gazette  two  months  l>efore  going  into  operation. 

Similar  regulations  by  Canada  or  Newfoundland  shall  be 
similarly  published  in  the  Canada  Gazette  and  the  Newfound- 
land Gazette  respectively. 


If  the  Government  of  the  United  States  considers  any  such 
laws  or  regulations  inconsistent  with  the  Treaty  of  1818,  it  is 
entitled  to  so  notify  the  Government  of  Great  Britain  within 
the  two  months  referred  to  in  Rule  No.  I. 


Any  law  or  regulation  so  notified  shall  not  come  into  effect 
with  respect  to  inhabitants  of  the  United  States  until  the  Perma- 
nent Mixed  Fishery  Commission  has  decided  that  the  regula- 
tion is  reasonable  within  the  meaning  of  this  award. 


Permanent  Mixed  Fishery  Commissions  for  Canada  and  New- 
foundland respectively  shall  be  established  for  the  decision  of 
such  questions  as  to  the  reasonableness  of  future  regulations, 
as  contemplated  by  Article  IV  of  the  Special  Agreement;  these 
Commissions  shall  consist  of  an  exT3ert  national  appointed  by 
either  Party  for  five  years.  The  third  member  shall  not  be  a 
national  of  either  Party;  he  shall  be  nominated  for  five  years 
by  the  agreement  of  the  Parties,  or  failing  such  agreement 
within  two  months,  he  shall  be  nominated  by  Her  Majesty  the 
Queen  of  the  Netherlands.  The  two  national  members  shall  be 
convoked  by  the  Government  of  Great  Britain  within  one  month 
from  the  date  of  notification  by  the  Government  of  the  United 
States. 


118  DOCUMENTS  ON   INTERNATIONAL  LAW 


The  two  national  members  having  failed  to  agree  within  one 
month,  within  another  month  the  full  Commission,  under  the 
Presidency  of  the  Umpire,  is  to  be  convoked  by  Great  Britain. 
It  must  deliver  its  decision,  if  the  two  Governments  do  not 
agree  otherwise,  at  the  latest  in  three  months.  The  Umpire 
shall  conduct  the  procedure  in  accordance  with  that  provided 
in  Chapter  IV  of  the  Convcnition  for  the  Pacific  Settlement  of 
Int(;rnational  Disputes,  except  in  so  far  as  herein  otherwise 
provided. 


The  form  of  convocation  of  the  Commission  including  the 
terms  of  reference  of  the  question  at  issue  shall  be  as  follows: 
"The  provision  hereinafter  fully  set  forth  of  an  Act  dated 
published  in  the  has  been  notified  to  the 

Government  of  Great  Britain  by  the  Government  of  the  United 
States,  under  date  of  ,  as  provided  by  the  award  of 

the  Hague  Tribunal  of  September  7th,  1910. 

"Pursuant  to  the  provisions  of  that  award  the  Government 
of  Great  Britain  hereby  convokes  the  Permanent  Mixed 
Fishery   Commission   for  ,    composed   of 

Commissioner    for    the    United    States    of    America,    and    of 
Commissioner  for  ,  which  shall  meet  at 

and  render  a  decision  within  one  month  as  to  whether 
the  provision  so  notified  is  reasonable  and  consistent  with  the 
Treaty  of  1818,  as  interpreted  by  the  award  of  the  Hague 
Tribunal  of  September  7th,  1910,  and  if  not,  in  what  respect 
it  is  unreasonable  and  inconsistent  therewith. 

"Failing  an  agreement  on  this  question  within  one  month 
the  Commission  shall  so  notify  the  Government  of  Great 
Britain  in  order  that  the  further  action  required  by  that  award 
may  be  taken  for  the  decision  of  the  above  question. 

"The  provision  is  as  follows:  —  " 


THE  LAW  OF  PEACE  119 


The  unanimous  decision  of  the  two  national  Commissioners, 
or  the  majority  decision  of  the  Umpire  and  one  Commissioner, 
shall  be  final  and  binding. 

Question  II 

Have  the  inhabitants  of  the  United  States,  while  exercising 
the  liberties  referred  to  in  said  Article,  a  right  to  employ  as 
members  of  the  fishing  crews  of  their  vessels  persons  not  inhabi- 
tants of  the  United  States? 

In  regard  to  this  question  the  United  States  claim  in  substance : 

1.  That  the  liberty  assured  to  their  inhabitants  by  the 

treaty  plainly  includes  the  right  to  use  all  the  means 
customary  or  appropriate  for  fishing  upon  the  sea, 
not  only  ships  and  nets  and  boats,  but  crews  to  handle 
the  ships  and  the  nets  and  the  boats; 

2.  That  no  right  to  control  or  limit  the  means  which  these 

inhabitants  shall  use  in  fishing  can  be  admitted  unless 
it  is  provided  in  the  terms  of  the  treaty  and  no  right 
to  question  the  nationality  or  inhabitancy  of  the  crews 
employed  is  contained  in  the  terms  of  the  treaty. 

And  Great  Britain  claims: 

1.  That  the  treaty  confines  the  liberty  to  inhabitants  of 

the  United  States  exclusively; 

2.  That  the  Governments  of  Great  Britain,  Canada  or 

Newfoundland  may,  without  infraction  of  the  treaty, 
prohibit  other  persons  from  engaging  as  fishermen  in 
American  vessels. 

Now  considering  (1)  that  the  liberty  to  take  fish  is  an  economic 
right  attributed  by  the  treaty;  (2)  that  it  is  attributed  to 
inhabitants  of  the  United  States,  without  any  mention  of  their 
nationality;  (3)  that  the  exercise  of  an  economic  right  includes 
the  right  to  employ  servants;  (4)  that  the  right  of  employing 
servants  has  not  been  limited  by  the  treaty  to  the  employment 


120  DOCUMENTS  ON  INTERNATIONAL  LAW 

of  persons  of  a  distinct  nationality  or  inhabitancy ;  (5)  that  the 
hberty  to  take  fish  as  an  economic  hberty  refers  not  only  to  the 
individuals  doing  the  manual  act  of  fishing,  but  also  to  thos^ 
for  whose  profit  the  fish  are  taken. 

But  considering,  (l)  that  the  treaty  does  not  intend  to  grant 
to  individual  persons  or  to  a  class  of  persons  the  liberty  to  take 
fish  in  certain  waters  "in  common,"  that  is  to  say  in  company, 
with  individual  British  subjects,  in  the  sense  that  no  law  could 
forbid  British  subjects  to  take  service  on  American  fishing 
ships;  (2)  that  the  treaty  intends  to  secure  to  the  United  States 
a  share  of  the  fisheries  designated  therein,  not  only  in  the  inter- 
est of  a  certain  class  of  individuals,  but  also  in  the  interest  of 
both  the  United  States  and  Great  Britain,  as  appears  from  the 
evidence  and  notably  from  the  correspondence  between  Mr. 
Adams  and  Lord  Bathurst  in  1815;  (3)  that  the  inhabitants  of 
the  United  States  do  not  derive  the  liberty  to  take  fish  directly 
from  the  treaty,  but  from  the  United  States  Government  as 
party  to  the  treaty  with  Great  Britain  and  moreover  exercising 
the  right  to  regulate  the  conditions  under  which  its  inhabitants 
may  enjoy  the  granted  liberty;  (4)  that  it  is  in  the  interest  of 
the  inhabitants  of  the  United  States  that  the  fishing  liberty 
granted  to  them  be  restricted  to  exercise  by  them  and  removed 
from  the  enjoyment  of  other  aliens  not  entitled  by  this  treaty 
to  participate  in  the  fisheries;  (5)  that  such  restrictions  have 
been  throughout  enacted  in  the  British  Statute  of  June  15,  1819, 
and  that  of  June  3,  1824,  to  this  effect,  that  no  alien  or  stranger 
whatsoever  shall  fish  in  the  waters  designated  therein,  except 
in  so  far  as  by  treaty  thereto  entitled,  and  that  this  exception 
will,  in  virtue  of  the  Treaty  of  1818,  as  hereinbefore  interpreted 
by  this  award,  exempt  from  these  statutes  American  fishermen 
fishing  by  the  agency  of  non-inhabitant  aliens  employed  in 
their  service;  (6)  that  the  treaty  does  not  afTect  the  sovereign 
right  of  Great  Britain  as  to  aliens,  non-inhabitants  of  the 
United  States,  nor  the  right  of  Great  Britain  to  regulate  the 
engagement  of  British  suV)jects,  while  these  aliens  or  British 
subjects  are  on  British  territory. 

Now  therefore,  in  view  of  the  preceding  considerations  this 


THE  LAW  OF  PEACE  121 

Tribunal  is  of  opinion  that  the  inhabitants  of  the  United  States 
while  exercising  the  liberties  referred  to  in  the  said  Article  have 
a  right  to  employ,  as  members  of  the  fishing  crews  of  their 
vessels,  persons  not  inhabitants  of  the  United  States. 

But  in  view  of  the  preceding  considerations  the  Tribunal, 
to  prevent  any  misunderstanding  as  to  the  effect  of  its 
award,  expresses  the  opinion  that  non-inhabitants  employed 
as  members  of  the  fishing  crews  of  United  States  vessels 
derive  no  benefit  or  immunity  from  the  treaty  and  it  is  so 
decided  and  awarded. 

Question  III 

Can  the  exercise  by  the  inhabitants  of  the  United  States  of 
the  liberties  referred  to  in  the  said  Article  be  subjected,  without 
the  consent  of  the  United  States,  to  the  requirements  of  entry 
or  report  at  custom-houses  or  the  payment  of  light  or  harbour  or 
other  dues,  or  to  any  other  similar  requirement  or  condition  or 
exaction? 

The  Tribunal  is  of  opinion  as  follows: 

It  is  obvious  that  the  liberties  referred  to  in  this  question  are 
those  that  relate  to  taking  fish  and  to  drying  and  curing  fish 
on  certain  coasts  as  prescribed  in  the  Treaty  of  October  20, 
1818.  The  exercise  of  these  liberties  by  the  inhabitants  of  the 
United  States  in  the  prescribed  waters  to  Which  they  relate,  has 
no  reference  to  any  commercial  privileges  which  may  or  may  not 
attach  to  such  vessels  by  reason  of  any  supposed  authority 
outside  the  treaty,  which  itself  confers  no  commercial  privi- 
leges whatever  upon  the  inhabitants  of  the  United  States  or  the 
vessels  in  which  they  may  exercise  the  fishing  liberty.  It  fol- 
lows, therefore,  that  when  the  inhabitants  of  the  United  States 
are  not  seeking  to  exercise  the  commercial  privileges  accorded 
to  trading  vessels  for  the  vessels  in  which  they  are  exercising  the 
granted  liberty  of  fishing,  they  ought  not  to  be  subjected  to 
requirements  as  to  report  and  entry  at  custom-houses  that  are 
only  appropriate  to  the  exercise  of  commercial  privileges.  The 
exercise  of  the  fishing  liberty  is  distinct  from  the  exercise  of 
commercial  or  trading  privileges  and  it  is  not  competent  for 


122  DOCUMENTS  ON  INTERNATIONAL  LAW 

Great  Britain  or  her  Colonies  to  impose  upon  the  former  exac- 
tions only  appropriate  to  the  latter.  The  reasons  for  the  re- 
quirements enumerated  in  the  case  of  commercial  vessels,  have 
no  relation  to  the  case  of  fishing  vessels. 

We  think,  however,  that  the  requirement  that  American 
fishing  vessels  should  report,  if  proper  conveniences  and  an 
opportunity  for  doing  so  are  provided,  is  not  unreasonable  or 
inappropriate.  Such  a  report,  while  serving  the  purpose  of  a 
notification  of  the  presence  of  a  fishing  vessel  in  the  treaty 
waters  for  the  purpose  of  exercising  the  treaty  liberty,  while  it 
gives  an  opportunity  for  a  proper  surveillance  of  such  vessel  by 
revenue  officers,  may  also  serve  to  afford  to  such  fishing  vessel 
protection  from  interference  in  the  exercise  of  the  fishing  liberty. 
There  should  be  no  such  requirement,  however,  unless  reasonably 
convenient  opportunity  therefor  be  afforded  in  person  or  by 
telegraph,  at  a  custom-house  or  to  a  customs  official. 

The  Tribunal  is  also  of  opinion  that  light  and  harbour  dues, 
if  not  imposed  on  Newfoundland  fishermen,  should  not  be  im- 
posed on  American  fishermen  while  exercising  the  liberty  granted 
by  the  treaty.  To  impose  such  dues  on  American  fishermen  only 
would  constitute  an  unfair  discrimination  between  them  and 
Newfoundland  fishermen,  and  one  inconsistent  with  the  liberty 
granted  to  American  fishermen  to  take  fish,  etc.,  "in  common 
with  the  subjects  of  His  Britannic  Majesty." 

Further,  the  Tribunal  considers  that  the  fulfilment  of  the 
requirement  as  to  report  by  fishing  vessels  on  arrival  at  the 
fishery  would  be  greatly  facilitated  in  the  interests  of  both 
Parties  by  the  adoption  of  a  system  of  registration,  and  distinc- 
tive marking  of  the  fishing  boats  of  both  Parties,  analogous  to 
that  established  by  Articles  V  to  XIII,  inclusive,  of  the  Inter- 
national Convention  signed  at  the  Hague,  8  May,  1882,  for  the 
regulation  of  the  North  Sea  Fisheries. 

The  Tribunal  therefore  decides  and  awards  as  follows: 

The  requirement  that  an  American  fishing  vessel  should  re- 
port, if  proper  conveniences  for  doing  so  are  at  hand,  is  not 
unreasonable,  for  the  reasons  stated  in  the  foregoing  opinion. 
There  should  be  no  such  requirement,  however,  unless  there 


THE  LAW  OF  PEACE  123 

be  reasonably  convenient  opportunity  afforded  to  report  in 
person  or  by  telegraph,  either  at  a  custom-house  or  to  a  customs 
official. 

But  the  exercise  of  the  fishing  liberty  by  the  inhabitants  of 
the  United  States  should  not  be  subjected  to  the  purely  com- 
mercial formaUties  of  report,  entry  and  clearance  at  a  custom- 
house, nor  to  light,  harbour  or  other  dues  not  imposed  upon 
Newfoundland  fishermen. 

Question  IV 

Under  the  provisions  of  the  said  Article  that  the  American 
fishermen  shall  be  admitted  to  enter  certain  bays  or  harbours 
for  shelter,  repairs,  wood  or  water,  and  for  no  other  purpose 
whatever,  but  that  they  shall  be  under  such  restrictions  as  may 
be  necessary  to  prevent  their  taking,  drying  or  curing  fish 
therein  or  in  any  other  manner  whatever  abusing  the  privileges 
thereby  reserved  to  them,  is  it  permissible  to  impose  restrictions 
making  the  exercise  of  such  privileges  conditional  upon  the 
payment  of  light  or  harbour  or  other  dues,  or  entering  or  report- 
ing at  custom-houses  or  any  similar  conditions? 

The  Tribunal  is  of  opinion  that  the  provision  in  the  first  Ar- 
ticle of  the  Treaty  of  October  20th,  1818,  admitting  American 
fishermen  to  enter  certain  bays  or  harbours  for  shelter,  repairs, 
wood  and  water,  and  for  no  other  purpose  whatever,  is  an  exer- 
cise in  large  measure  of  those  duties  of  hospitaUty  and  humanity 
which  all  civiUzed  nations  impose  upon  themselves  and  expect 
the  performance  of  from  others.  The  enumerated  purposes  for 
which  entry  is  permitted  all  relate  to  the  exigencies  in  which 
those  who  pursue  their  perilous  caUing  on  the  sea  may  be  in- 
volved. The  proviso  which  appears  in  the  first  article  of  the 
said  treaty  immediately  after  the  so-called  renunciation  clause, 
was  doubtless  due  to  a  recognition  by  Great  Britain  of  what  was 
expected  from  the  humanity  and  civiUzation  of  the  then  lead- 
ing commercial  nation  of  the  world.  To  impose  restrictions 
making  the  exercise  of  such  privileges  conditional  upon  the  pay- 
ment of  hght,  harbour,  or  other  dues,  or  entering  and  reporting 
at  custom-houses,  or  any  similar  conditions  would  be  incon- 


124  DOCUMENTS  ON  INTERNATIONAL  LAW 

sistent  with  the  grounds  upon  which  such  privileges  rest  and 
therefore  is  not  permissible. 

And  it  is  decided  and  awarded  that  such  restrictions  are  not 
permissible. 

It  seems  reasonable,  however,  in  order  that  these  privileges 
accorded  by  Great  Britain  on  these  grounds  of  hospitality  and 
humanity  should  not  be  abused,  that  the  American  fishermen 
entering  such  bays  for  any  of  the  four  purposes  aforesaid  and 
remaining  more  than  48  hours  therein,  should  be  required,  if 
thought  necessary  by  Great  Britain  or  the  Colonial  Gov- 
ernment, to  report,  either  in  person  or  by  telegraph,  at  a 
custom-house  or  to  a  customs  official,  if  reasonably  convenient 
opportunity  therefor  is  afforded. 

And  it  is  so  decided  and  awarded. 

Question  V 

From  where  must  be  measured  the  "three  marine  miles  of 
any  of  the  coasts,  bays,  creeks,  or  harbours"  referred  to  in  the 
said  Article? 

In  regard  to  this  question.  Great  Britain  claims  that  the 
renunciation  applies  to  all  bays  generally  and 

The  United  States  contend  that  it  applies  to  bays  of  a  certain 
class  or  condition. 

Now,  considering  that  the  treaty  used  the  general  term  "  bays  " 
without  qualification,  the  Tribunal  is  of  opinion  that  these  words 
of  the  Treaty  must  be  interpreted  in  a  general  sense  as  applying 
to  every  bay  on  the  coast  in  question  that  might  be  reasonably 
supposed  to  have  been  considered  as  a  bay  by  the  negotiators 
of  the  treaty  under  the  general  conditions  then  prevaihng,  unless 
the  United  States  can  adduce  satisfactory  proof  that  any  re- 
strictions or  qualifications  of  the  general  use  of  the  term  were 
or  should  have  been  present  to  their  minds. 

And  for  the  purpose  of  such  proof  the  United  States  contend: 

1°.  That  while  a  State  may  renounce  the  treaty  right  to 
fish  in  foreign  territorial  waters,  it  cannot  renounce 
the  natural  right  to  fish  on  the  high  seas. 


THE  LAW  OF  PEACE  125 

But  the  Tribunal  is  unable  to  agree  with  this  contention. 
Because  though  a  State  cannot  grant  rights  on  the  high  seas 
it  certainly  can  abandon  the  exercise  of  its  right  to  fish  on  the 
high  seas  within  certain  definite  Umits.  Such  an  abandon- 
ment was  made  with  respect  to  their  fishing  rights  in  the  waters 
in  question  by  France  and  Spain  in  1763.  By  a  convention 
between  the  United  Kingdom  and  the  United  States  in  1846, 
the  two  countries  assumed  ownership  over  waters  in  Fuca 
Straits  at  distances  from  the  shore  as  great  as  17  miles. 

The  United  States  contend  moreover: 

2°.  That  by  the  use  of  the  term  "Uberty  to  fish"  the 
United  States  manifested  the  intention  to  renounce 
the  hberty  in  the  waters  referred  to  only  in  so  far  as 
that  Uberty  was  dependent  upon  or  derived  from  a 
concession  on  the  part  of  Great  Britain,  and  not  to 
renounce  the  right  to  fish  in  those  waters  where  it 
was  enjoyed  by  virtue  of  their  natural  right  as  an 
independent  State. 

But  the  Tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  the  term  "Hberty  to  fish"  was  used  in  the 
renunciatory  clause  of  the  Treaty  of  1818  because  the  same 
term  had  been  previously  used  in  the  Treaty  of  1783  which 
gave  the  Uberty;  and  it  was  proper  to  use  in  the  renunciatory 
clause  the  same  term  that  was  used  in  the  grant  with  respect 
to  the  object  of  the  grant;  and,  in  view  of  the  terms  of  the 
grant,  it  would  have  been  improper  to  use  the  term  "right" 
in  the  renunciation.  Therefore  the  conclusion  'drawn  from  the 
use  of  the  term  "Uberty"  instead  of  the  term  "right"  is  not 
justified; 

(6)  Because  the  term  "Uberty"  was  a  term  properly  appU- 
cable  to  the  renunciation  which  referred  not  only  to  fishing 
in  the  territorial  waters  but  also  to  drying  and  curing  on 
the  shore.  This  latter  right  was  undoubtedly  held  under  the 
provisions  of  the  treaty  and  was  not  a  right  accruing  to  the 
United  States  by  virtue  of  any  principle  of  international  law. 


126  DOCUMENTS  ON  INTERNATIONAL  LAW 

3°.  The  United  States  also  contend  that  the  term  "bays 
of  His  Brittanic  Majesty's  Dominions"  in  the  renun- 
ciatory clause  must  be  read  as  including  only  those 
bays  which  were  under  the  territorial  sovereignty  of 
Great  Britain. 

But  the  Tribunal  is  unable  to  accept  this  contention: 

(a)  Because  the  description  of  the  coast  on  which  the  fishery 
is  to  be  exercised  by  the  inhabitants  of  the  United  States  is 
expressed  throughout  the  Treaty  of  1818  in  geographical  terms 
and  not  by  reference  to  pohtical  control;  the  treaty  describes 
the  coast  as  contained  between  capes; 

(6)  Because  to  express  the  political  concept  of  dominion  as 
equivalent  to  sovereignty,  the  word  "dominion"  in  the  singular 
would  have  been  an  adequate  term  and  not  "dominions"  in 
the  plural;  this  latter  term  having  a  recognized  and  well  settled 
meaning  as  descriptive  of  those  portions  of  the  earth  which 
owe  poUtical  allegiance  to  His  Majesty;  e.g.  "His  Brittanic 
Majesty's  Dominions  beyond  the  Seas." 

4°.  It  has  been  further  contended  by  the  United  States 
that  the  renunciation  appUes  only  to  bays  six  miles 
or  less  in  width  "inter  fauces  terrae,"  those  bays  only 
being  territorial  bays,  because  the  three  mile  rule  is, 
as  shown  by  this  treaty,  a  principle  of  international 
law  applicable  to  coasts  and  should  be  strictly  and 
systematically  applied  to  bays. 

But  the  Tribunal  is  unable  to  agree  with  this  contention: 

(a)  Because  admittedly  the  geographical  character  of  a  bay 
contains  conditions  which  concern  the  interests  of  the  terri- 
torial sovereign  to  a  more  important  and  intimate  extent  than 
do  those  connected  with  the  open  coast.  Thus  conditions 
of  national  and  territorial  integrity,  of  defence,  of  commerce 
and  of  industry  are  all  vitally  concerned  with  the  control  of 
the  bays  penetrating  the  national  coastline.  This  interest 
varies,  speaking  generally  in  proportion  to  the  penetration 
inland  of  the  bay;    but  as  no  princinle  of  international  law 


THE  LAW  OF  PEACE  127 

recognizes  any  specified  relation  between  the  concavity  of  the 
bay  and  the  requirements  for  control  by  the  territorial  sover- 
eignty, this  Tribunal  is  unable  to  qualify  by  the  apphcation 
of  any  new  principle  its  interpretation  of  the  Treaty  of  1818 
as  excluding  bays  in  general  from  the  strict  and  systematic 
apphcation  of  the  three  mile  rule;  nor  can  this  Tribunal  take 
cognizance  in  this  connection  of  other  principles  concerning 
the  territorial  sovereignty  over  bays  such  as  ten  mile  or  twelve 
mile  Umits  of  exclusion  based  on  international  acts  subsequent 
to  the  Treaty  of  1818  and  relating  to  coasts  of  a  different  con- 
figuration and  conditions  of  a  different  character; 

(6)  Because  the  opinion  of  jurists  and  publicists  quoted  in 
the  proceedings  conduce  to  the  opinion  that  speaking  generally 
the  three  mile  rule  should  not  be  strictly  and  systematically 
apphed  to  bays; 

(c)  Because  the  treaties  referring  to  these  coasts,  antedating 
the  Treaty  of  1818,  made  special  provisions  as  to  bays,  such  as 
the  Treaties  of  1686  and  1713  between  Great  Britain  and  France, 
and  especially  the  Treaty  of  1778  between  the  United  States  and 
France.  Likewise  Jay's  Treaty  of  1794,  Art.  25,  distinguished 
bays  from  the  space  "within  cannon-shot  of  the  coast"  in 
regard  to  the  right  of  seizure  in  times  of  war.  If  the  proposed 
Treaty  of  1806  and  the  Treaty  of  1818  contained  no  disposition 
to  that  effect,  the  explanation  may  be  found  in  the  fact  that  the 
first  extended  the  marginal  belt  to  five  miles,  and  also  in  the 
circumstance  that  the  American  proposition  of  1818  in  that 
respect  was  not  limited  to  "bays"  but  extended  to  "chambers 
formed  by  headlands"  and  to  "five  marine  miles  from  a  right 
fine  from  one  headland  to  another,"  a  proposition  which  in  the 
times  of  the  Napoleonic  wars  would  have  effected  to  a  very 
large  extent  the  operations  of  the  British  Navy; 

(d)  Because  it  has  not  been  shown  by  the  documents  and 
correspondence  in  evidence  here  that  the  apphcation  of  the 
three  mile  rule  to  bays  was  present  to  the  minds  of  the  negotia- 
tors in  1818  and  they  could  not  reasonably  have  been  expected 
either  to  presume  it  or  to  provide  against  its  presumption; 

(e)  Because  it  is  difficult  to  explain  the  words  in  Art.  Ill  of 


128  DOCUMENTS  ON  INTERNATIONAL  LAW 

the  treaty  under  interpretation  "country  .  .  .  together  with 
its  bays,  harbours  and  creeks"  other-\vise  than  that  all  bays 
without  distinction  as  to  their  width  were,  in  the  opinion  of 
the  negotiators,  part  of  the  territory; 

(/)  Because  from  the  information  before  this  Tribunal  it  is 
evident  that  the  three  mile  rule  is  not  applied  to  bays  strictly 
or  systematically  either  by  the  United  States  or  by  any  other 
Power; 

(f/)  It  has  been  recognized  by  the  United  States  that  bays 
stand  apart,  and  that  in  respect  of  them  territorial  jurisdiction 
may  be  exercised  farther  than  the  marginal  belt  in  the  case  of 
Delaware  Bay  by  the  report  of  the  United  States  Attorney 
General  of  May  19th,  1793;  and  the  letter  of  Mr.  Jefferson  to 
Mr.  Genet  of  November  8th,  1793  declares  the  bays  of  the 
United  States  generally  to  be,  "as  being  landlocked,  within  the 
body  of  the  United  States." 

5°.  In  this  latter  regard  it  is  further  contended  by  the 
United  States,  that  such  exceptions  only  should  be 
made  from  the  application  of  the  three  mile  rule  to 
bays  as  are  sanctioned  by  conventions  and  established 
usage;  that  all  exceptions  for  which  the  United  States 
of  America  were  responsible  are  so  sanctioned;  and 
that  His  Majesty's  Government  are  unable  to  pro- 
vide evidence  to  show  that  the  bays  concerned  by  the 
Treaty  of  1818  could  be  claimed  as  exceptions  on  these 
grounds  either  generally,  or  except  possibly  in  one 
or  two  cases,  specifically. 

But  the  Tribunal  while  recognizing  that  conventions  and 
estaljlished  usage  might  be  considered  as  the  basis  for  claiming 
as  territorial  those  bays  which  on  this  ground  might  be  called 
historic  bays,  and  that  such  claim  should  be  held  valid  in  the 
absence  of  any  principle  of  international  law  on  the  subject; 
nevertheless  is  unable  to  apply  this,  a  contrario,  so  as  to  subject 
the  bays  in  question  to  the  three  mile  rule,  as  desired  by  the 
United  States; 

(a)  Because  Great  Britain  has  during  this  controversy  as- 


THE  LAW  OF  PEACE  129 

serted  a  claim  to  these  bays  generally,  and  has  enforced  such 
claim  specifically  in  statutes  or  otherwise,  in  regard  to  the 
more  important  bays  such  as  Chaleurs,  Conception,  and 
Miramichi ; 

(b)  Because  neither  should  such  relaxations  of  this  claim,  as 
are  in  evidence,  be  construed  as  renunciations  of  it;  nor  should 
omissions  to  enforce  the  claim  in  regard  to  bays  as  to  which 
no  controversy  arose,  be  so  construed.  Such  a  construction 
by  this  Tribunal  would  not  only  be  intrinsically  inequitable 
but  internationally  injurious;  in  that  it  would  discourage 
conciliatory  diplomatic  transactions  and  encourage  the  asser- 
tion of  extreme  claims  in  their  fullest  extent; 

(c)  Because  any  such  relaxations  in  the  extreme  claim  of 
Great  Britain  in  its  international  relations  are  compensated  by 
recognitions  of  it  in  the  same  sphere  by  the  United  States; 
notably  in  relations  with  France  for  instance  in  1823  when 
they  apphed  to  Great  Britain  for  the  protection  of  their  fishery 
in  the  bays  on  the  western  coast  of  Newfoundland,  whence 
they  had  been  driven  by  French  war  vessels  on  the  ground  of 
the  pretended  exclusive  right  of  the  French.  Though  they 
never  asserted  that  their  fishermen  had  been  disturbed  within 
the  three  mile  zone,  only  alleging  that  the  disturbance  had 
taken  place  in  the  bays,  they  claimed  to  be  protected  by  Great 
Britain  for  having  been  molested  in  waters  which  were,  as 
Mr.  Rush  stated, "  clearly  within  the  jurisdiction  and  sovereignty 
of  Great  Britain." 

6°.  It  has  been  contended  by  the  United  States  that  the 
words  "coasts,  bays,  creeks  or  harbours"  are  here 
used  only  to  express  different  parts  of  the  coast  and 
are  intended  to  express  and  be  equivalent  to  the  word 
''coast"  whereby  the  three  marine  miles  would  be 
measured  from  the  sinuosities  of  the  coast  and  the 
renunciation  would  apply  only  to  the  waters  of  bays 
within  three  miles. 

But  the  Tribunal  is  unable  to  agree  with  this  contention: 
(a)  Because  it  is  a  principle  of  interpretation  that  words  in 


130  DOCUMENTS  ON  INTERNATIONAL  LAW 

a  document  ought  not  to  be  considered  as  being  without  any 
meaning  if  there  is  not  specific  evidence  to  that  purpose  and 
the  interpretation  referred  to  would  lead  to  the  consequence, 
practically  of  reading  the  words  "bays,  coasts  and  harbours" 
out  of  the  treaty;  so  that  it  would  read  "within  three  miles  of 
any  of  the  coasts"  including  therein  the  coasts  of  the  bays  and 
harbours ; 

(b)  Because  the  word  "therein"  in  the  proviso  —  "restric- 
tions necessary  to  prevent  their  taking,  drying  or  curing  fish 
therein"  can  refer  only  to  "bays,"  and  not  to  the  belt  of  three 
miles  along  the  coast;  and  can  be  explained  only  on  the  sup- 
position that  the  words  "bays,  creeks  and  harbours"  are  to  be 
understood  in  their  usual  ordinary  sense  and  not  in  an  arti- 
ficially restricted  sense  of  bays  within  the  three  mile  belt; 

(c)  Because  the  practical  distinction  for  the  purpose  of  this 
fishery  between  coasts  and  bays  and  the  exceptional  conditions 
pertaining  to  the  latter  has  been  shown  from  the  correspondence 
and  the  documents  in  evidence,  especially  the  Treaty  of  1783, 
to  have  been  in  all  probability  present  to  the  minds  of  the 
negotiators  of  the  Treaty  of  1818; 

(d)  Because  the  existence  of  this  distinction  is  confirmed  in 
the  same  article  of  the  treaty  by  the  proviso  permitting  the 
United  States  fishermen  to  enter  bays  for  certain  purposes; 

(e)  Because  the  word  "coasts"  is  used  in  the  plural  form 
whereas  the  contention  would  require  its  use  in  the  singular; 

(/)  Because  the  Tribunal  is  unable  to  understand  the  term 
"bays"  in  the  renunciatory  clause  in  other  than  its  geographical 
sense,  by  which  a  bay  is  to  be  considered  as  an  indentation  of 
the  coast,  bearing  a  configuration  of  a  particular  character  easy 
to  determine  specifically,  but  difficult  to  describe  generally. 

The  negotiators  of  the  Treaty  of  1818  did  probably  not 
trouble  themselves  with  subtle  theories  concerning  the  notion 
of  "bays";  they  most  probably  thought  that  everybody  would 
know  what  was  a  bay.  In  this  popular  sense  the  term  must  be 
interpreted  in  the  treaty.  The  interpretation  must  take  into 
account  all  the  individual  circumstances  which  for  any  one  of 
the  different  bays  are  to  be  appreciated,  the  relation  of  its  width 


THE  LAW  OF  PEACE  131 

to  the  length  of  penetration  inland,  the  possibility  and  the 
necessity  of  its  being  defended  by  the  State  in  whose  terri- 
tory it  is  indented;  the  special  value  which  it  has  for  the  in- 
dustry of  the  inhabitants  of  its  shores;  the  distance  which  it 
is  secluded  from  the  highways  of  nations  on  the  open  sea  and 
other  circumstances  not  possible  to  enumerate  in  general. 

For  these  reasons  the  Tribunal  decides  and  awards: 

In  case  of  bays  the  three  marine  miles  are  to  be  measured 
from  a  straight  line  drawn  across  the  body  of  water  at  the 
place  where  it  ceases  to  have  the  configuration  and  charac- 
teristics of  a  bay.  At  all  other  places  the  three  marine  miles 
are  to  be  measured  following  the  sinuosities  of  the  coast. 

But  considering  the  Tribunal  cannot  overlook  that  this 
answer  to  Question  V,  although  correct  in  principle  and  the 
only  one  possible  in  view  of  the  want  of  a  sufficient  basis  for  a 
more  concrete  answer,  is  not  entirely  satisfactory  as  to  its 
practical  applicabihty,  and  that  it  leaves  room  for  doubts  and 
differences  in  practice.  Therefore  the  Tribunal  considers  it 
its  duty  to  render  the  decision  more  practicable  and  to  remove 
the  danger  of  future  differences  by  adjoining  to  it  a  recom- 
mendation in  virtue  of  the  responsibiHties  imposed  by  Art. 
IV  of  the  Special  Agreement. 

Considering,  moreover,  that  in  treaties  with  France,  with 
the  North  German  Confederation  and  the  German  Empire  and 
hkewise  in  the  North  Sea  Convention,  Great  Britain  has 
adopted  for  similar  cases  the  rule  that  only  bays  of  ten  miles 
width  should  be  considered  as  those  wherein  the  fishing  is 
reserved  to  nationals.  And  that  in  the  course  of  the  negotia- 
tions between  Great  Britain  and  the  United  States  a  similar 
rule  has  been  on  various  occasions  proposed  and  adopted  by 
Great  Britain  in  instructions  to  the  naval  officers  stationed  on 
these  coasts.  And  that  though  these  circumstances  are  not 
sufficient  to  constitute  this  a  principle  of  international  law, 
it  seems  reasonable  to  propose  this  rule  with  certain  exceptions, 
all  the  more  that  this  rule  with  such  exceptions  has  already 
formed  the  basis  of  an  agreement  between  the  two  Powers. 

Now  therefore  this  Tribunal  in  pursuance  of  the  provisions 


132  DOCUMENTS  ON  INTERNATIONAL  LAW 

of  Art.  IV  hereby  recommends  for  the  consideration  and  accept- 
ance of  the  High  Contracting  Parties  the  following  rules  and 
method  of  procedure  for  determining  the  hmits  of  the  bays 
hereinbefore  enumerated. 


In  every  bay  not  hereinafter  specifically  provided  for  the 
limits  of  exclusion  shall  be  drawn  three  miles  seaward  from  a 
straight  hne  across  the  bay  in  the  part  nearest  the  entrance  at 
the  first  point  where  the  width  does  not  exceed  ten  miles. 


In  the  following  bays  where  the  configuration  .of  the  coast 
and  the  local  climatic  conditions  are  such  that  foreign  fisher- 
men when  within  the  geographic  headlands  might  reasonably 
and  bona  fide  believe  themselves  on  the  high  seas,  the  limits  of 
exclusion  shall  be  drawn  in  each  case  between  the  headlands 
hereinafter  specified  as  being  those  at  and  within  which  such 
fishermen  might  be  reasonably  expected  to  recog-nize  the  bay 
mider  average  conditions. 

For  the  Bale  des  Chaleurs  the  hne  from  the  Light  at  Birch 
Point  on  Miscou  Island  to  Macquereau  Point  Light;  for  the 
Bay  of  Miramichi,  the  line  from  the  Light  at  Point  Escuminac 
to  the  Light  on  the  Eastern  Point  of  Tabisintac  Gully;  for 
Egmont  Bay,  in  Prince  Edward  Island,  the  Une  from  the  Light 
at  Cape  Egmont  to  the  Light  at  West  Point;  and  off  St.  Ann's 
Bay,  in  the  Province  of  Nova  Scotia,  the  hne  from  the  Light 
at  Point  Anconi  to  the  nearest  point  on  the  opposite  shore  of 
the  mainland. 

For  Fortune  Bay,  in  Newfoundland,  the  line  from  Connaigre 
Head  to  the  Light  on  the  Southeasterly  end  of  Brunet  Island, 
thence  to  Fortune  Head. 

For  or  near  the  following  bays  the  limits  of  exclusion  shall 
be  three  marine  miles  seawards  from  the  following  hues,  namely: 

For  or  near  Barrington  Bay,  in  Nova  Scotia,  the  line  from 
the  Light  on  Stoddart  Island  to  the  Light  on  the  South  Point 
of  Cape  Sable,  thence  to  the  Light  at  Baccaro  Point;  at  Cheda- 


THE  LAW  OF  PEACE  133 

bucto  and  St.  Peter's  Bays,  the  line  from  Cranberry  Island 
Light  to  Green  Island  Light,  thence  to  Point  Rouge;  for  Mira 
Bay,  the  Une  from  the  Light  on  the  East  Point  of  Scatari  Island 
to  the  Northeasterly  Point  of  Cape  Morien;  and  at  Placentia 
Bay,  in  Newfoundland,  the  line  from  Latine  Point  on  the 
Eastern  mainland  shore,  to  the  most  Southerly  Point  of  Red 
Island,  thence  by  the  most  Southerly  Point  of  Merasheen  Island 
to  the  mainland. 

Long  Island  and  Bryer  Island,  on  St.  Mary's  Bay,  in  Nova 
Scotia,  shall,  for  the  purpose  of  delimitation,  be  taken  as  the 
coasts  of  such  bays. 

It  is  understood  that  nothing  in  these  rules  refers  either  to 
the  Bay  of  Fundy  considered  as  a  whole  apart  from  its  bays 
and  creeks  or  as  to  the  innocent  passage  through  the  Gut  of 
Canso,  which  were  excluded  by  the  agreement  made  by  ex- 
change of  notes  between  Mr.  Bacon  and  Mr.  Bryce  dated 
February  21st,  1909  and  March  4th,  1909;  or  to  Conception  Bay, 
which  was  provided  for  by  the  decision  of  the  Privy  Council 
in  the  case  of  the  Direct  United  States  Cable  Company  v.  The 
Anglo-American  Telegraph  Company,  in  which  decision  the 
United  States  have  acquiesced. 

Question  VI 

Have  the  inhabitants  of  the  United  States  the  Uberty  under 
the  said  Article  or  otherwise,  to  take  fish  in  the  bays,  harbours, 
and  creeks  on  that  part  of  the  southern  coast  of  Newfoundland 
which  extends  from  Cape  Ray  to  Rameau  Islands,  or  on  the 
western  and  northern  coasts  of  Newfoundland  from  Cape  Ray 
to  Quirpon  Islands,  and  on  the  Magdalen  Islands? 

In  regard  to  this  question,  it  is  contended  by  the  United 
States  that  the  inhabitants  of  the  United  States  have 
the  hberty  under  Art.  I  of  the  treaty  of  taking  fish 
in  the  bays,  harbours  and  creeks  on  that  part  of  the 
southern  coast  of  Newfoundland  which  extends  from 
Cape  Ray  to  Rameau  Islands  and  on  the  western  and 
northern  coasts  of  Newfoundland  from  Cape  Ray  to 


134  DOCUMENTS  ON  INTERNATIONAL  LAW 

Quirpon  Islands  and  on  the  Magdalen  Islands.  It 
is  contended  by  Great  Britain  that  they  have  no 
such  Uberty. 

Now  considering  that  the  evidence  seems  to  show  that  the 
intention  of  the  Parties  to  the  Treaty  of  1818,  as  indicated  by 
the  records  of  the  negotiations  and  by  the  subsequent  atti- 
tude of  the  Governments  was  to  admit  the  United  States  to 
such  fishery,  this  Tribunal  is  of  opinion  that  it  is  incum- 
bent on  Great  Britain  to  produce  satisfactory  proof  that  the 
United  States  arc  not  so  entitled  under  the  treaty. 

For  this  purpose  Great  Britain  points  to  the  fact  that  whereas 
the  treaty  grants  to  American  fishermen  liberty  to  take  fish 
"on  the  coasts,  bays,  harbours,  and  creeks  from  Mount  Joly 
on  the  southern  coast  of  Labrador"  the  Uberty  is  granted  to 
the  "coast"  only  of  Newfoundland  and  to  the  "shore"  only 
of  the  Magdalen  Islands;  and  argues  that  evidence  can  be 
found  in  the  correspondence  submitted  indicating  an  intention 
to  exclude  Americans  from  Newfoundland  bays  on  the  treaty 
coast,  and  that  no  value  would  have  been  attached  at  that 
time  by  the  United  States  Government  to  the  hberty  of  fishing 
in  such  bays  because  there  was  no  cod  fishery  there  as  there 
was  in  the  bays  of  Labrador. 

But  the  Tribunal  is  unable  to  agree  ^vith  this  contention: 
(o)  Because  the  words  "part  of  the  southern  coast  .  .  . 
from  .  .  .  to"  and  the  words  "western  and  northern  coast 
.  .  .  from  ...  to"  clearly  indicate  one  uninterrupted  coast- 
line; and  there  is  no  reason  to  read  into  the  words  "coasts" 
a  contradistinction  to  bays,  in  order  to  exclude  bays.  On 
the  contrary,  as  already  held  in  the  answer  to  Question  V,  the 
words  "liberty,  forever,  to  dry  and  cure  fish  in  any  of  the 
unsettled  bays,  harbours  and  creeks  of  the  Southern  part  of 
the  coast  of  Newfoundland  hereabove  described,"  indicate 
that  in  the  meaning  of  the  treaty,  as  in  all  the  preceding  treaties 
relating  to  the  same  territories,  the  words  coast,  coasts,  har- 
bours, bays,  etc.,  are  used,  without  attaching  to  the  word 
"coast"  the  specific  meaning  of  excluding  bays.     Thus  in  the 


THE  LAW  OF  PEACE  135 

provision  of  the  Treaty  of  1783  giving  liberty  "to  take  fish  on 
such  part  of  the  coast  of  Newfoundland  as  British  fishermen 
shall  use";  the  word  "coast"  necessarily  includes  bays,  because 
if  the  intention  had  been  to  prohibit  the  entering  of  the  bays 
for  fishing  the  following  words  "but  not  to  dry  or  cure  the 
same  on  that  island,"  would  have  no  meaning.  The  con- 
tention that  in  the  Treaty  of  1783  the  word  "bays"  is  inserted 
lest  otherwise  Great  Britain  would  have  had  the  right  to  ex- 
clude the  Americans  to  the  three  mile  line,  is  inadmissible, 
because  in  that  treaty  that  Une  is  not  mentioned; 

(6)  Because  the  correspondence  between  Mr.  Adams  and 
Lord  Bathurst  also  shows  that  during  the  negotiations  for  the 
treaty  the  United  States  demanded  the  former  rights  enjoyed 
under  the  Treaty  of  1783,  and  that  Lord  Bathurst  in  the  letter  of 
30th  October,  1815  made  no  objection  to  granting  those  "former 
rights"  "placed  mider  some  modifications"  which  latter  did 
not  relate  to  the  right  of  fishing  in  bays,  but  only  to  the  "pre- 
occupation of  British  harbours  and  creeks  by  the  fishing  vessels 
of  the  United  States  and  the  forcible  exclusion  of  British  sub- 
jects where  the  fishery  might  be  most  advantageously  con- 
ducted," and  "to  the  clandestine  introduction  of  prohibited 
goods  into  the  British  colonies."  It  may  be  therefore  assumed 
that  the  word  "coast"  is  used  in  both  treaties  in  the  same 
sense,  including  bays; 

(c)  Because  the  treaty  expressly  allows  the  hberty  to  dry 
and  cure  in  the  unsettled  bays,  etc.,  of  the  southern  part  of 
the  coast  of  Newfoundland,  and  tliis  shows  that,  a  fortiori,  the 
taking  of  fish  in  those  bays  is  also  allowed;  because  the  fishing 
liberty  was  a  lesser  burden  than  the  grant  to  cure  and  dry, 
and  the  restrictive  clauses  never  refer  to  fishing  in  contra- 
distinction to  drying,  but  always  to  drying  in  contradistinction 
to  fishing.  Fishing  is  granted  without  drying,  never  drying 
without  fishing; 

{d)  Because  there  is  not  sufficient  evidence  to  show  that 
the  enmneration  of  the  component  parts  of  the  coast  of  Labra- 
dor was  made  in  order  to  discriminate  between  the  coast  of 
Labrador  and  the  coast  of  Newfoundland; 


136  DOCUMENTS  ON  INTERNATIONAL  LAW 

(e)  Because  the  statement  that  there  is  no  codfish  in  the 
bays  of  Newfoundland  and  that  the  Americans  only  took 
interest  in  the  codfishery  is  not  proved;  and  evidence  to  the 
contrary  is  to  be  found  in  Mr.  John  Adams'  Journal  of  Peace 
Negotiations  of  November  25,  1782; 

(/)  Because  the  treaty  grants  the  right  to  take  fish  of  every 
kind,  and  not  only  codfish; 

(g)  Because  the  evidence  shows  that,  in  1823,  the  Americans 
were  fishing  in  Newfoundland  bays  and  that  Great  Britain 
when  summoned  to  protect  them  against  expulsion  therefrom 
by  the  French  did  not  deny  their  right  to  enter  such  bays. 

Therefore  this  Tribunal  is  of  opinion  that  American  inhabi- 
tants are  entitled  to  fish  in  the  bays,  creeks  and  harbours  of 
the  treaty  coasts  of  Newfoundland  and  the  Magdalen  Islands 
and  it  is  so  decided  and  awarded. 

Question  VII 

Are  the  inhabitants  of  the  United  States  whose  vessels  resort 
to  the  treaty  coasts  for  the  purpose  of  exercising  the  Uberties 
referred  to  in  Article  I  of  the  Treaty  of  1818  entitled  to  have 
for  those  vessels,  when  duly  authorized  by  the  United  States 
in  that  behalf,  the  commercial  privileges  on  the  treaty  coasts 
accorded  by  agreement  or  otherwise  to  United  States  trading 
vessels  generally? 

Now  assuming  that  commercial  ]:)rivileges  on  the  treaty 
coasts  are  accorded  by  agreement  or  otherwise  to  United 
States  trading  vessels  generally,  without  any  exception,  the 
inhabitants  of  the  United  States,  whose  vessels  resort  to  the 
same  coasts  for  the  purpose  of  exercising  the  liljerties  referred 
to  in  Article  I  of  the  Treaty  of  1818,  are  entitled  to  have  for 
those  vessels  when  duly  authorized  by  the  United  States  in 
that  behalf,  the  above  mentioned  commercial  privileges,  the 
treaty  containing  nothing  to  the  contrary.  But  they  cannot 
at  the  same  time  and  during  the  same  voyage  exercise  their 
treaty  rights  and  enjoy  their  commercial  privileges,  because 
treaty  rights  and  commercial  privileges  are  submitted  to 
different  rules,  regulations  and  restraints. 


THE  LAW  OF  PEACE  137 

For  these  reasons  this  Tribunal  is  of  opinion  that  the  inhabi- 
tants of  the  United  States  are  so  entitled  in  so  far  as  concerns 
this  treaty,  there  being  nothing  in  its  provisions  to  disentitle 
them  provided  the  treaty  Uberty  of  fishing  and  the  commercial 
privileges  are  not  exercised  concurrently  and  it  is  so  decided 
and  awarded. 

Note.  —  In  1912  an  Agreement  between  Great  Britain  and  the  United 
States  was  signed  and  ratified,  whereby  they  adopted  with  certain  modifi- 
cations the  rules  and  methods  of  procedure  recommended  by  the  Arbitral 
Tribunal,  "under  which  all  questions  which  may  arise  in  the  future  with 
regard  to  the  exercise  of  the  Uberties  referred  to  in  Article  I  of  the  Treaty 
of  October  20,  1818,  may  be  determined  in  accordance  with  the  principles 
laid  down  in  the  Award."  They  also  adopted  the  recommendations  of  the 
Tribunal  as  to  the  determination  of  the  hmits  of  bays  contiguous  to  the 
territory  of  the  Dominion  of  Canada,  leaving  for  future  consideration, 
if  necessarj',  the  question  of  the  delimitation  of  Nei^-foundland  Bays. 
(Supplement  to  the  American  Journal  of  International  Law,  Jan.  1913,  pp. 
41-46.) 

27.   Excerpts  from   the   British   Order  in   Council   of  March  15, 

1893,  assuming  Jurisdiction  over  Certain  Islands  in  the 

Pacific  Ocean 

Whereas  by  the  second  and  sixth  Sections  of  the  British 
Settlements  Act,  1887,  it  is  Enacted, 

(Here  follows  a  recital  of  various  enactments.) 

And  whereas  there  are  in  the  Pacific  Ocean  certain  Islands 
which  are,  or  may  hereafter  become,  British  Settlements  within 
the  meaning  of  the  said  Act. 

And  whereas  there  are  also  in  the  Pacific  Ocean  certain  Islands 
or  places  which  are,  or  may  hereafter  come,  under  the  protection 
of  Her  Majesty. 

And  whereas  by  treaty,  grant,  usage,  sufferance,  or  other 
lawful  means,  Her  Majesty  has  or  may  have  power  and  juris- 
diction in  the  said  last  mentioned  islands  and  places.  .  .  . 

Now,  therefore.  Her  Majesty  by  virtue  and  in  exercise  of  the 
powers  in  this  behalf  by  the  British  Settlements  Act,  1887,  the 
Pacific  Islanders  Protection  Acts,  and  the  Foreign  Jurisdiction 
Act,  1890,  or  otherwise,  in  Her  Majesty  vested,  is  pleased  by 


138  DOCUMENTS  ON  INTERNATIONAL  LAW 

and  with  the  advice  of  her  Privy  Council  to  order,  and  it  is 
hereby  ordered,  as  follows :  —  ... 

4.  The  limits  of  this  Order  shall  be  the  Pacific  Ocean  and  the 
islands  and  places  therein,  including 

(a)  Islands  and  places  which  are  for  the  time  being  British 
Settlements. 

(6)  Islands  and  places  which  are  for  time  being  under  the 
protection  of  Her  Majesty. 

(c)  Islands  and  places  which  are  for  the  time  being  under  no 
civilized  government,  but  exclusive  (except  as  in  this  Order 
expressty  provided  in  relation  to  any  particular  matter)  of 

(1)  Any  place  within  any  part  of  Her  Majesty's  dominions 
or  the  territorial  waters  thereof  which  is  for  the  time  being 
within  the  jurisdiction  of  the  legislature  of  any  British  pos- 
session. 

(2)  Any  place  for  the  time  being  w^ithin  the  jurisdiction  or 
protectorate  of  any  civilised  power. 

5.  In  islands  and  places  which  are  not  British  settlements, 
or  under  the  protection  of  Her  Majesty,  jurisdiction  under  this 
Order  shall  be  exercised  (except  only  as  this  Order  otherwise 
expressly  provides)  only  over  Her  Majesty's  subjects,  and  any 
foreigners  or  natives,  in  so  far  as  by  reason  of  being,  or  having 
been,  on  board  a  British  ship  or  otherwise,  they  have  come  under 
a  duty  of  allegiance  to  Her  Majesty. 

23.  Crimes,  offences,  wrongs  and  breaches  of  contract 
against  or  affecting  the  person,  property  and  rights  of  natives 
or  foreigners,  committed  by  persons  subject  to  this  Order,  are, 
subject  to  the  provisions  of  this  Order,  punishable  or  otherwise 
cognisable,  in  the  same  manner  as  if  they  were  committed 
against  or  affected  the  person,  property  or  rights  of  British 
subjects. 

109.  (1)  Where  a  foreigner  desires  to  institute  or  take  a 
suit  or  proceeding  of  a  civil  nature  against  a  British  subject, 
or  a  British  subject  desires  to  institute  or  take  a  suit  or  pro- 
ceeding of  a  civil  nature  against  a  foreigner,  the  Court  may 
entertain  the  suit  or  proceeding,  and  hear  and  determine  it  .  .  . 
at  a  place  where  such  trial  might  be  had  if  all  parties  were 


THE  LAW  OF  PEACE  139 

British    subjects,  and    in  all  other  respects  according  to  the 
ordinary  course  of  the  Court. 

(2)  Provided  that  the  foreigner  first  files  in  the  Court  his 
consent  to  the  jurisdiction  of  the  Court;  and  also,  if  required 
by  the  Court,  obtains  and  files  a  certificate  in  writing  from  a 
competent  authority  of  his  own  government  to  the  effect  that 
no  objection  is  made  by  that  government  to  the  foreigner  sub- 
mitting in  the  particular  cause  or  matter  to  the  jurisdiction 
of  the  Court;  and  also,  if  required  by  the  Court,  gives  security 
to  the  satisfaction  of  the  Court,  to  such  reasonable  amount  as 
the  Court  directs,  by  deposit  of  money  or  otherwise,  to  pay  fees, 
costs,  damages,  and  expenses,  and  to  abide  by  and  perform  the 
decision  to  be  given  by  the  court  or  on  appeal. 

28.   Extract  from  the  Judgment  of  Chief  Justice  Marshall 
in  the  case  of  the  Exchange 

To  the  court,  it  appears,  that  where,  ^vithout  treaty,  the 
ports  of  a  nation  are  open  to  the  private  and  public  ships  of  a 
friendly  power,  whose  subjects  have  also  liberty  without  special 
Ucense,  to  enter  the  country  for  business  or  amusement,  a  clear 
distinction  is  to  be  drawn  between  the  rights  accorded  to  private 
individuals  or  trading  vessels,  and  those  accorded  to  public 
armed  ships  which  constitute  a  part  of  the  military  force  of  the 
nation. 

The  preceding  reasoning  has  maintained  the  propositions 
that  all  exemptions  from  territorial  jurisdiction  must  be  derived 
from  the  consent  of  the  sovereign  of  the  territory;  that  this 
consent  may  be  implied  or  expressed;  and  that,  when  implied, 
its  extent  must  be  regulated  by  the  nature  of  the  case  and  the 
views  under  which  the  parties  requiring  and  conceding  it  must 
be  supposed  to  act. 

When  private  individuals  of  one  nation  spread  themselves 
through  another  as  business  or  caprice  may  direct,  mingling 
indiscriminately  with  the  inhabitants  of  that  other,  or  when 
merchant  vessels  enter  for  the  purposes  of  trade,  it  would  be 
obviously  inconvenient  and  dangerous  to  society,  and  would 


140  DOCUMENTS  ON   INTERNATIONAL  LAW 

subject  the  laws  to  continual  infraction,  antl  the  government 
to  degradation,  if  such  individuals  ditl  not  owe  temporary  and 
local  allegiance,  and  were  not  amenable  to  the  jurisdiction  of 
that  country.  Nor  can  the  foreign  sovereign  have  any  motive 
for  wishing  such  exemption.  His  subjects  thus  passing  into 
foreign  countries,  are  not  employed  by  him,  nor  are  they  engaged 
in  national  pursuits.  Consequently  there  are  powerful  motives 
for  not  exempting  persons  of  this  description  from  the  juris- 
diction of  the  country  in  which  they  are  found,  and  no  one 
motive  for  requiring  it.  The  implied  license,  therefore,  under 
which  they  enter,  can  never  be  construed  to  grant  such  exemp- 
tion. But  in  all  respects  different  is  the  situation  of  a  public 
armed  ship.  She  constitutes  a  part  of  the  military  force  of 
her  nation;  acts  under  the  immediate  and  direct  command  of 
the  sovereign;  is  employed  by  him  in  national  objects.  He  has 
many  and  powerful  motives  for  preventing  those  objects  from 
being  defeated  by  the  interference  of  a  foreign  state.  Such 
interference  cannot  take  place  without  affecting  his  power  and 
his  dignity.  The  implied  license  therefore,  under  which  such 
vessel  enters  a  friendly  port,  may  reasonably  be  construed,  and, 
it  seems  to  the  court,  ought  to  be  construed,  as  containing  an 
exemption  from  the  jurisdiction  of  the  sovereign,  within  whose 
territory  she  claims  the  rights  of  hospitality. 

Upon  these  principles,  by  the  unanimous  consent  of  nations, 
a  foreigner  is  amenable  to  the  laws  of  the  place ;  but  certainly  in 
practice,  nations  have  not  yet  asserted  their  jurisdiction  over  the 
public  armed  ships  of  a  foreign  sovereign,  entering  a  port  open 
for  their  reception. 

Bynkershoek,  a  jurist  of  great  reputation,  has  indeed  main- 
tained that  the  property  of  a  foreign  sovereign  is  not  distinguish- 
able by  any  legal  exemption  from  the  property  of  an  ordinary 
individual,  and  has  quoted  several  cases  in  which  courts  have 
exercised  jurisdiction  over  causes  in  which  a  foreign  sovereign 
was  made  a  party  defendant. 

Without  indicating  any  opinion  on  this  question,  it  may  safely 
be  afRrmed,  that  there  is  a  manifest  distinction  between  the 
private  property  of  the  person  who  happens  to  be  a  prince,  and 


THE  LAW  OF  PEACE  141 

that  military  force  which  supports  the  sovereign  power,  and 
maintains  the  dignity  and  independence  of  a  nation.  A  prince, 
by  acquiring  private  property  in  a  foreign  country,  may  possibly 
be  considered  as  subjecting  that  property  to  the  territorial 
jurisdiction;  he  may  be  considered  as  so  far  laying  down  the 
prince,  and  assuming  the  character  of  a  private  individual; 
but  this  he  cannot  be  presumed  to  do  with  respect  to  any  por- 
tion of  that  armed  force,  which  upholds  his  crown,  and  the 
nation  he  is  intrusted  to  govern. 

The  only  applicable  case  cited  by  Bynkershoek,  is  that  of  the 
Spanish  ships  of  war,  seized  in  Flushing  for  a  debt  due  from  the 
King  of  Spain.  In  that  case  the  states  generally  interposed; 
and  there  is  reason  to  believe,  from  the  manner  in  which  the 
transaction  is  stated,  that,  either  by  the  interference  of  govern- 
ment, or  the  decision  of  the  court,  the  vessels  were  released. 
This  case  of  the  Spanish  vessels  is,  it  is  believed,  the  only  case 
furnished  by  the  history  of  the  world,  of  an  attempt  made  by 
an  individual  to  assert  a  claim  against  a  foreign  prince,  by 
seizing  the  armed  vessels  of  the  nation.  That  this  proceeding 
was  at  once  arrested  by  the  government,  in  a  nation  which  ap- 
pears to  have  asserted  the  power  of  proceeding  in  the  same 
manner  against  the  private  property  of  the  prince,  would  seem 
to  furnish  no  feeble  argument  in  support  of  the  universahty 
of  the  opinion  in  favor  of  the  exemption  claimed  for  ships  of 
w^ar.  The  distinction  made  in  our  owai  laws  between  public 
and  private  ships  would  appear  to  proceed  from  the  same 
opinion. 

It  seems,  then,  to  the  court,  to  be  a  principle  of  public  law, 
that  national  ships  of  war,  entering  the  port  of  a  friendly  power 
open  for  their  reception,  are  to  be  considered  as  exempted  by 
the  consent  of  that  power  from  its  jurisdiction. 

Without  doubt,  the  sovereign  of  the  place  is  capable  of 
destroying  this  implication.  He  may  claim  and  exercise 
jurisdiction,  either  by  employing  force,  or  by  subjecting  such 
vessels  to  the  ordinary  tribunals.  But,  until  such  power  be 
exerted  in  a  manner  not  to  be  misunderstood,  the  sovereign 
cannot  be  considered  as  having  imparted  to  the  ordinary  tri- 


142  DOCUMENTS  ON  INTERNATIONAL  LAW 

bunals  a  jurisdiction,  whicli  it  would  be  a  breach  of  faith  to  exer- 
cise. Those  general  statutory  provisions,  therefore,  which  are 
descriptive  of  the  ordinary  jurisdiction  of  the  judicial  tribunals, 
which  give  an  individual  whose  property  has  b(H'n  wrested  from 
him,  a  right  to  claim  that  property  in  the  courts  of  the  country 
in  which  it  is  found,  ought  not,  in  the  opinion  of  this  court,  to 
be  so  construed  as  to  give  them  jurisdiction  in  a  case  in  which 
the  sovereign  power  has  impliedly  consented  to  waive  its  juris- 
diction. 

The  arguments  in  favour  of  this  opinion  which  have  been 
drawn  from  the  general  inability  of  the  judicial  power  to  enforce 
its  decisions  in  cases  of  this  description,  from  the  consideration 
that  the  sovereign  power  of  the  nation  is  alone  competent  to 
avenge  wrongs  committed  by  a  sovereign,  that  the  questions 
to  which  such  wrongs  give  birth  are  rather  questions  of  policy 
than  of  law,  that  they  are  for  diplomatic,  rather  than  legal 
discussion,  are  of  great  weight,  and  merit  serious  attention. 
But  the  argument  has  already  been  drawn  to  a  length  which 
forbids  a  particular  examination  of  these  points. 

The  principles  which  have  been  stated  will  now  be  applied 
to  the  case  at  bar. 

In  the  present  state  of  the  evidence  and  proceedings,  the 
Exchange  must  be  considered  as  a  vessel  which  was  the  property 
of  the  libollants,  whose  claim  is  repelled  by  the  fact,  that  she  is 
now  a  national  armed  vessel,  commissioned  by,  and  in  the  ser- 
vice of  the  Emperor  of  France.  The  evidence  of  this  fact  is 
not  controverted.  But  it  is  contended  that  it  constitutes  no 
bar  to  an  inquiry  into  the  validity  of  the  title,  b}^  which  the 
Emperor  holds  this  vessel.  Every  person,  it  is  alleged,  who  is 
entitled  to  property  brought  within  the  jurisdiction  of  our 
courts,  has  a  right  to  assert  his  title  in  those  courts,  unless  there 
be  some  law  taking  his  case  out  of  the  general  rule.  It  is  there- 
fore said  to  be  the  right,  and  if  it  be  the  right,  it  is  the  duty  of 
the  court,  to  inquire  whether  this  title  has  been  extinguished 
by  an  act,  the  validity  of  which  is  recognized  by  national  or 
municipal  law. 

If  the  preceding  reasoning  be  correct,  the  Exchange,  being 


THE   LAW   OF   PEACE  143 

a  public  armed  ship,  in  the  service  of  a  foreign  sovereign,  with 
whom  the  government  of  the  United  States  is  at  peace,  and 
having  entered  an  American  port  open  for  her  reception,  on  the 
terms  on  which  ships  of  war  are  generally  permitted  to  enter 
the  ports  of  a  friendly  power,  must  be  considered  as  having 
come  into  the  American  territory  under  an  implied  promise, 
that  while  necessarily  wdthin  it,  and  demeaning  herself  in  a 
friendly  manner,  she  should  be  exempt  from  the  jurisdiction  of 
the  country.  —  (7  Cranch,  116.) 

Note.  —  The  Exchange  was  originally  an  American  schooner.  In 
1810  she  was  seized  by  order  of  Napoleon,  then  Emperor  of  the  French, 
and  duly  set  forth  as  a  lawfully  commissioned  French  ship  under  the  name 
of  the  Balaou.  As  such  she  put  into  the  port  of  Philadelphia  in  1811,  when 
she  was  claimed  by  her  original  owners.  The  effect  of  Chief  Justice 
Marshall's  decision  was  to  confirm  the  authority  over  her  of  her  French 
captain  and  officers. 

29.   Excerpts  from  the  General  Act  of  the  Brussels  Conference 
of  1890  for  the  Suppression  of  the  African  Slave  Trade 

Chapter  I.     Slave-Trade  Countries.  —  Measures   to    be 

TAKEN    IN   the    PlACES    OF   OrIGIN 

Article  I 

The  powers  declare  that  the  most  effective  means  of  counter- 
acting the  slave-trade  in  the  interior  of  Africa  are  the  following: 

1.  Progressive  organization  of  the  administrative,  judicial, 
religious,  and  military  services  in  the  African  territories  placed 
under  the  sovereignty  or  protectorate  of  civilized  nations. 

2.  The  gradual  establishment  in  the  interior,  by  the  powers 
to  which  the  territories  are  subject,  of  strongly  occupied  stations, 
in  such  a  way  as  to  make  their  protective  or  repressive  action 
effectively  felt  in  the  territories  devastated  by  slave-hunting. 

3.  The  construction  of  roads,  and  in  particular  of  railways, 
connecting  the  advanced  stations  with  the  coast,  and  per- 
mitting easy  access  to  the  inland  waters,  and  to  such  of  the 
upper  courses  of  the  rivers  and  streams  as  are  broken  by  rapids 
and  cataracts,  with   a   view  to   substituting   economical   and 


144  DOCUMENTS  ON  INTERNATIONAL  LAW 

rapid  means  of  transportation  for  the  present  system  of  car- 
riage by  men. 

4.  Establishment  of  steam-boats  on  the  inland  navigable 
waters  and  on  the  lakes,  supported  by  fortified  posts  established 
on  the  banks. 

5.  Establishment  of  telegraphic  lines,  insuring  the  communi- 
cation of  the  posts  and  stations  with  the  coast  and  with  the 
administrative  centres. 

6.  Organization  of  expeditions  and  flying  columns,  to  keep 
up  the  communication  of  the  stations  with  each  other  and  with 
the  coast,  to  support  repressive  action,  and  to  insure  the  security 
of  high  roads. 

7.  Restriction  of  the  importation  of  fire-arms,  at  least  of  those 
of  modern  pattern,  and  of  ammunition  throughout  the  entire 
extent  of  the  territory  in  which  the  slave-trade  is  carried  on. 

Article  III 

The  powers  exercising  a  sovereignty  or  a  protectorate  in 
Africa  confirm  and  give  precision  to  their  former  declarations, 
and  engage  to  proceed  gradually,  as  circumstances  may  permit, 
either  by  the  means  above  indicated  or  by  any  other  means 
that  they  may  consider  suitable,  with  the  repression  of  the  slave- 
trade,  each  State  in  its  respective  possessions  and  under  its 
own  direction.  Whenever  they  consider  it  possible,  they  shall 
lend  their  good  offices  to  such  powers  as,  with  a  purely  humani- 
tarian object,  may  be  engaged  in  Africa  in  the  fulfilment  of  a 
similar  mission. 

Article  VI 

Slaves  liberated  in  consequence  of  the  stoppage  or  dispersion 
of  a  convoy  in  the  interior  of  the  continent,  shall  be  sent  back, 
if  circumstances  permit,  to  their  country  of  origin;  if  not,  the 
local  authorities  shall  facilitate,  as  much  as  possible,  their  means 
of  living,  and  if  they  desire  it,  help  them  to  settle  on  the  spot. 

Article  VII 
Any  fugitive  slave  claiming,  on  the  continent,  the  protection 
of  the  signatory  powers,  shall  receive  it,  and  shall  be  received 


THE  LAW  OF  PEACE  145 

in  the  camps  and  stations  officially  established  by  said  powers, 
or  on  board  of  the  vessels  of  the  State  plying  on  the  lakes  and 
rivers.  Private  stations  and  boats  are  only  permitted  to  exer- 
cise the  right  of  asylum  subject  to  the  previous  consent  of  the 
State. 

Article  VIII 

The  experience  of  all  nations  that  have  intercourse  with  Africa 
having  shown  the  pernicious  and  preponderating  part  played 
by  fire-arms  in  operations  connected  with  the  slave-trade  as 
well  as  internal  wars  between  the  native  tribes;  and  this  same 
experience  having  clearly  proved  that  the  preservation  of  the 
African  population  whose  existence  it  is  the  express  wish  of 
the  powers  to  protect,  is  a  radical  impossibility,  if  measures 
restricting  the  trade  in  fire-arms  and  ammunition  are  not 
adopted,  the  powers  decide,  so  far  as  the  present  state  of  their 
frontiers  permits,  that  the  importation  of  fire-arms,  and  espe- 
cially of  rifles  and  improved  weapons,  as  well  as  of  powder,  ball 
and  cartridges,  is,  except  in  the  cases  and  under  the  conditions 
provided  for  in  the  following  Article,  prohibited  in  the  terri- 
tories comprised  between  the  20th  parallel  of  North  latitude  and 
the  22nd  parallel  of  South  latitude,  and  extending  westward 
to  the  Atlantic  Ocean  and  eastward  to  the  Indian  Ocean  and  its 
dependencies,  including  the  islands  adjacent  to  the  coast  within 
100  nautical  miles  from  the  shore. 

Article  XIII 

The  signatory  powers  that  have  possessions  in  Africa  in  con- 
tact with  the  zone  specified  in  Article  VIII,  bind  themselves  to 
take  the  necessary  measures  for  preventing  the  introduction 
of  fire-arms  and  ammunition  across  their  inland  frontiers  into 
the  regions  of  said  zone,  at  least  that  of  improved  arms  and 
cartridges. 


146  DOCUMENTS  ON  INTERNATIONAL  LAW 

Chapter  IL     Caravan    Routes    and    Transportation    of 
Slaves  by  Land 

Article  XV 

Independently  of  the  repressive  or  protective  action  which 
they  exercise  in  the  centres  of  the  slave-trade,  it  shall  be  the 
duty  of  the  stations,  cruisers  and  posts,  whose  establishment 
is  provided  for  in  Article  II,  and  of  all  other  stations  established 
or  recognized  by  Article  IV,  by  each  government  in  its  posses- 
sions, to  watch,  so  far  as  circumstances  shall  permit,  and  in 
proportion  to  the  progress  of  their  administrative  organization, 
the  roads  travelled  in  their  territory  by  slave-dealers,  to  stop 
convoys  on  their  march,  or  to  pursue  them  wherever  their  action 
can  be  legally  exercised. 

Article  XVII 

A  strict  watch  shall  be  organized  by  the  local  authorities  at 
the  ports  and  places  near  the  coast,  with  a  view  to  preventing 
the  sale  and  shipment  of  slaves  brought  from  the  interior,  as 
well  as  the  formation  and  departure  landwards  of  bands  of 
slave-hunters  and  dealers. 

Caravans  arriving  at  the  coast  or  in  its  vicinity,  as  well  as 
those  arriving  in  the  interior  at  a  locality  occupied  by  the  terri- 
torial power,  shall,  on  their  arrival,  be  subjected  to  a  minute 
inspection  as  to  the  persons  composing  them.  Any  such  person 
being  ascertained  to  have  been  captured  or  carried  off  by  force, 
or  mutilated,  either  in  his  native  place  or  on  the  way,  sha-ll  be 
set  free. 

Article  XVIII 
In  the  possessions  of  each  of  the  contracting  powers,  it  shall 
be  the  duty  of  the  government  to  protect  liberated  slaves,  to 
return  them,  if  possible,  to  their  country,  to  procure  means  of 
subsistence  for  them,  and,  in  particular,  to  take  charge  of 
the  education  and  subsequent  employment  of  abandoned 
children. 


THE  LAW  OF  PEACE  147 

Chapter  III.     Repression  of  the  Slave-Trade  by  Sea 
Section  I.     General  Provisions. 

Article  XX 

The  signatory  powers  recognize  the  desirability  of  taking 
steps  in  common  for  the  more  effective  repression  of  the  slave- 
trade  in  the  maritime  zone  in  which  it  still  exists. 

Article  XXI 

This  zone  extends,  on  the  one  hand,  between  the  coasts  of  the 
Indian  Ocean  (those  of  the  Persian  Gulf  and  of  the  Red  Sea 
included),  from  Beloochistan  to  Cape  Tangalane  (Quilimane); 
and,  on  the  other  hand,  a  conventional  line  which  first  follows 
the  meridian  from  Tangalane  till  it  intersects  the  26th  degree 
of  South  latitude;  it  is  then  merged  in  this  parallel,  then  passes 
round  the  Island  of  Madagascar  by  the  east,  keeping  20  miles 
off  the  east  and  north  shore,  till  it  intersects  the  meridian 
at  Cape  Ambre.  From  this  point  the  limit  of  the  zone  is 
determined  by  an  oblique  line,  which  extends  to  the  coast  of 
Beloochistan,  passing  20  miles  off  Cape  Ras-el-Had. 

Article  XXII 

The  signatory  powers  of  the  present  General  Act,  among 
whom  exist  special  conventions  for  the  suppression  of  the  slave- 
trade,  have  agreed  to  restrict  the  clauses  of  those  conventions 
concerning  the  reciprocal  right  of  visit,  of  search  and  of  seizure 
of  vessels  at  sea,  to  the  above  mentioned  zone. 

Article  XXIII 
The  same  powers  also  agree  to  limit  the  above  mentioned 
right  to  vessels  whose  tonnage  is  less  than  500  tons.     This 
stipulation  shall  be  revised  as  soon  as  experience  shall  have 
shown  the  necessity  thereof. 

Article  XXIV 
All  other  provisions  of  the  conventions  concluded  for  the 
suppression  of  the  slave-trade  between  the  aforesaid  powers 


148  DOCUMENTS  ON  INTERNATIONAL  LAW 

sliall  remain  in  force  provided  they  are  not  modified  by  the 
present  General  Act. 

Article  XXV 

The  signatory  powers  engage  to  adopt  efficient  measures 
to  prevent  the  unlawful  use  of  their  flag,  and  to  prevent  the 
transportation  of  slaves  on  vessels  authorized  to  fly  their  colours. 

Article  XXVI 

The  signatory  powers  engage  to  adopt  all  measures  necessary 
to  facilitate  the  speedy  exchange  of  information  calculated  to 
lead  to  the  discovery  of  persons  taking  part  in  operations  con- 
nected with  the  slave-trade. 

Article  XXVII 

At  least  one  international  bureau  shall  be  created;  it  shall  be 
established  at  Zanzibar.  The  high  contracting  parties  engage 
to  forward  to  it  all  the  documents  specified  in  Article  XLI, 
as  well  as  all  information  of  any  kind  likely  to  assist  in  the 
suppression  of  the  slave-trade. 

Article  XXVIII 

Any  slave  who  has  taken  refuge  on  board  a  ship  of  war  bearing 
the  flag  of  one  of  the  signatory  powers,  shall  be  immediately 
and  definitely  set  free.  Such  freedom,  however,  shall  not  with- 
draw him  from  the  competent  jurisdiction  if  he  has  been  guilty 
of  any  crime  or  offence  at  common  law. 

Article  XXIX 

Any  slave  detained  against  his  will  on  board  of  a  native  vessel 
shall  have  the  right  to  demand  his  liberty.  His  release  may  be 
ordered  by  any  agent  of  any  of  the  signatory  powers  on  whom 
the  present  general  act  confers  the  right  of  ascertaining  the 
status  of  persons  on  board  of  such  vessels,  although  such  release 
shall  not  withdraw  him  from  the  competent  jurisdiction  if  he 
has  committed  any  crime  or  offence  at  common  law.  —  {Sup- 


THE  LAW  OF  PEACE  149 

plement  to  the  American  Journal  of  International  Law,  Jan., 
1909,  pp.  29-61.) 

Note.  —  This  Treaty  is  worthy  to  be  ranked  with  the  Geneva  Con- 
vention as  a  valuable  humanitarian  document.  It  was  signed  by  all  the 
great  Powers  of  Europe,  the  United  States  of  America,  Belgium,  Denmark, 
Holland,  Portugal,  Persia,  Turkey,  Spain,  Sweden,  and  Zanzibar;  that  is 
to  say,  by  all  the  Powers  specially  interested  in  the  African  Slave  Trade, 
whether  because  of  their  territorial  possessions,  trading  interests  or  benev- 
olent activities.  The  extracts  here  given  deal  only  with  the  broad  and  gen- 
eral aspect  of  the  plan  embodied  in  the  Treaty.  Not  only  have  details 
been  passed  over,  but  many  matters  of  minor  importance  have  been  omit- 
ted altogether.  Careful  regulations  were  drawn  up  concerning  the  grant 
to  native  vessels  by  any  signatory  power  of  the  right  to  use  its  flag.  Pre- 
cautions were  taken  lest  slaves  should  be  carried  under  the  guise  of  negro 
passengers.  The  methods  to  be  employed  in  making  captures  and  carry- 
ing on  trials  were  prescribed.  An  International  Information  Office  was 
set  up  at  Zanzibar.  Measures  were  taken  for  the  protection  of  liberated 
slaves  and  the  restriction  of  the  traffic  in  intoxicating  Uquors.  The  pro- 
visions concerning  these  and  other  matters  were  too  minute  to  be  repro- 
duced here.  Moreover,  lapse  of  time,  changed  circumstances,  the  lack  of 
interest  shewn  by  some  Powers  and  the  diverson  of  the  zeal  of  others 
into  different  channels  have  rendered  some  of  the  regulations  obsolete. 
From  the  beginning  difficulties  arose  about  ratification,  mainly  because  of 
the  Right  of  Search  given  in  the  Treaty.  They  were,  however,  overcome 
by  1892.  In  1899  further  provision  was  made  for  restricting  the  trade 
in  spirituous  Uquors  with  the  native  tribes. 

30.  Bargain  for  the  Substitution  of  Territorial  for 
Consular  Jurisdiction 

Madagascar  and  Zanzibar 

The  Marquess  of  Salisbury  to  Sir  E.  Monson 

Foreign  Office,  April  22,  1897. 

Sir, 

I  have  received  your  Excellency's  despatch  of  the  6th  instant, 
containing  copies  of  two  notes  addressed  to  your  Excellency 
by  the  French  Minister  of  Foreign  Affairs. 

In  the  first  of  these  M.  Hanotaux  states  that  he  takes  note 
of  the  assurances  given  to  him  by  your  Excellency  on  the  29th 


150  DOCUMENTS  ON  INTERNATIONAL  LAW 

ultimo,  to  the  effect  that  Her  Majesty's  Government  were 
prepared  to  instruct  their  Agents  in  Madagascar  to  recognize 
the  jurisdiction  of  the  French  Tribunals  in  the  island  over  the 
British  subjects  established  there,  and  adds  that  he  would  be 
glad  to  hear  that  the  instructions  had  been  sent  by  telegraph. 

In  the  second  his  Excellency  states  that,  in  compliance  with 
the  wish  expressed  by  your  Excellency,  the  Government  of  the 
Republic  is  disposed  to  abandon  the  exercise  of  its  rights  of 
jurisdiction  over  those  now  subject  to  it  in  Zanzibar,  on  the  day 
when  the  administration  of  justice  there  shall  have  been  assured 
by  properly  constituted  British  Tribunals.  His  Excellency 
asks  that  you  will  communicate  this  declaration  to  Her 
Majesty's  Government. 

I  requested  your  Excellency  on  the  11th  instant  to  inform  the 
French  Government  that,  in  view  of  these  assurances,  I  had 
instructed  the  British  Consular  officers  in  the  Island  of  Mad- 
agascar to  recognize  the  jurisdiction  of  the  French  Tribunals 
in  the  island  over  British  subjects. 

Those  instructions  were  sent  by  telegraph,  and  I  request  your 
Excellency  to  inform  M.  Hanotaux  that  Her  Majesty's  Govern- 
ment takes  note  with  satisfaction  of  his  Excellency's  declara- 
tion in  regard  to  the  abandonment  of  French  jurisdiction  in 
Zanzibar. 

I  am,  &c., 

(Signed)  Salisbury. 

(British  Parliamentary  Papers,  Africa,  No.  8  (1897),  p.  59.) 


31.   A  Modem  Extradition  Treaty 
The  United  States  and  France,  1909 

The  United  States  of  America  and  the  Republic  of  France, 
being  desirous  to  confirm  their  friendly  relations  and  to  promote 
the  cause  of  justice,  have  resolved  to  conclude  a  new  treaty 
for  the  extradition  of  fugitives  from  justice,  and  have  appointed 
for  that  purpose  the  following  plenipotentiaries :  (Here  follow 
certain  names.) 


THE  LAW  OF  PEACE  151 

Who,  after  having  communicated  to  each  other  their  respec- 
tive full  powers,  found  in  good  and  due  form,  have  agreed  upon 
and  concluded  the  following  articles: 

Article  I 

The  Government  of  the  United  States  and  the  Government  of 
France  mutually  agree  to  deliver  up  persons  who,  having  been 
charged  with  or  convicted  of  any  of  the  crimes  or  offences 
specified  in  the  following  article,  committed  within  the  juris- 
diction of  one  of  the  contracting  parties,  shall  seek  an  asylum 
or  be  found  within  the  territories  of  the  other:  provided  that 
this  shall  only  be  done  upon  such  evidence  of  criminality  as, 
according  to  the  laws  of  the  place  where  the  fugitive  or  person 
so  charged  shall  be  found,  would  justify  his  or  her  apprehension 
and  commitment  for  trial  if  the  crime  or  offence  had  been  there 
committed. 

Article  II 

Extradition  shall  be  granted  for  the  following  crimes  and 
offences : 

1°.  Murder,  assassination,  parricide,  infanticide  and  poison- 
ing; manslaughter,  when  voluntary;  assault  with  intent  to 
commit  murder. 

2°.    Rape,  abortion,  bigamy. 

3°.   Arson. 

4°.    Robbery,  burglary,  house-breaking  or  shop-breaking. 

5°.  Forgery;  the  utterance  of  forged  papers,  the  forgery  or 
falsification  of  official  acts  of  government,  of  public  authority, 
or  of  courts  of  justice,  or  the  utterance  of  the  thing  forged  or 
falsified. 

6°.  The  counterfeiting,  falsifying  or  altering  of  money,  whether 
coin  or  paper,  or  of  instruments  of  debt  created  by  national, 
state,  provincial,  municipal  or  other  governments,  or  of  coupons 
thereof,  or  of  bank-notes,  or  the  utterance  or  circulation  of  the 
same;  or  the  counterfeiting,  falsifying,  or  altering  of  seals  of 
state. 


152  DOCUMENTS  ON  INTERNATIONAL  LAW 

7°.  rrau<l  or  l)reat'li  of  trust  by  a  bailee,  banker,  agent, 
factor,  executor,  administrator,  guardian,  trustee  or  other  per- 
son acting  in  a  fiduciary  capacity,  or  director  or  member  or 
officer  of  any  company,  when  such  act  is  made  criminal  by  the 
laws  of  l)oth  countries,  and  the  amount  of  money  or  the  value 
of  the  property  misappropriated  is  not  less  than  two  hundred 
dollars,  or  one  thousand  francs. 

Embezzlement  by  public  officers  or  depositaries;  embezzle- 
ment by  persons  hired  or  salaried,  to  the  detriment  of  their 
employers. 

8°.  Larceny;  obtaining  money,  valuable  securities  or  other 
property  by  false  pretences,  when  such  act  is  made  criminal 
by  the  laws  of  both  countries,  and  the  amount  of  money  or  the 
value  of  the  property  fraudulently  obtained  is  not  less  than 
two  hundred  dollars  or  one  thousand  francs. 
9°.   Perjury,  subornation  of  perjury. 

10°.  Child-stealing,  or  abduction  of  a  minor  under  the  age  of 
14  for  a  boy  and  of  16  for  a  girl. 

11°.    Kidnapping  of  minors  or  adults. 

12°.  Wilful  and  unlawful  destruction  or  obstruction  of  rail- 
roads, which  endangers  human  Ufe. 

13°.  (a)  Piracy,  by  the  law  of  nations. 

(b)  The  act  by  any  person,  being  or  not  being  one  of  the 
crew  of  a  vessel,  of  taking  possession  of  such  vessel  by  fraud  or 
violence. 

(c)  Wrongfully  sinking  or  destroying  a  vessel  at  sea. 

(d)  Revolt  or  conspiracy  to  revolt,  by  two  or  more  persons 
on  board  a  ship  on  the  high  seas,  against  the  authority  of  the 
captain  or  master. 

(e)  Assaults  on  board  a  ship  on  the  high  seas,  with  intent 
to  do  grievous  bodily  harm. 

14°.  Crimes  and  offences  against  the  laws  of  both  countries 
for  the  suppression  of  slavery  and  slave-trading. 

15°.  Receiving  money,  valuable  securities  or  other  property 
knowing  the  same  to  have  been  unlawfully  obtained,  when  such 
act  is  made  criminal  by  the  laws  of  both  countries  and  the 
amount  of  money  or  the  value  of  the  property  so  received 


THE  LAW  OF  PEACE  153 

is    not    less    than    two    hundred    dollars    or    one    thousand 
francs. 

Extradition  shall  also  be  granted  for  participation  or  com- 
plicity in  or  attempt  to  commit  any  of  the  crimes  or  offences 
above  mentioned  when  such  participation,  comphcity,  or 
attempt  is  punishable  by  the  laws  of  the  two  countries. 

Article  III 

Requisitions  for  the  surrender  of  fugitives  from  justice  shall 
be  made  by  the  diplomatic  agents  of  the  contracting  parties,  or, 
in  the  absence  of  these  from  the  country  or  its  seat  of  govern- 
ment, they  may  be  made  by  the  consular  officers. 

If  the  person  whose  extradition  is  requested  shall  have  been 
convicted  of  a  crime  or  offence,  a  duly  authenticated  copy  of 
the  sentence  of  the  court  in  which  he  was  convicted,  or,  if  the 
fugitive  is  merely  charged  with  a  crime  or  offence,  a  duly  au- 
thenticated copy  of  the  warrant  of  arrest  in  the  coimtry  where 
the  crime  or  offence  has  been  committed  and  of  the  depositions 
or  other  evidence  upon  which  such  warrant  was  issued,  shall  be 
produced. 

The  extradition  of  fugitives  under  the  provisions  of  this 
treaty  shall  be  carried  out  in  the  United  States  and  in  France, 
respectively,  in  conformity  with  the  laws  regulating  extradition 
for  the  time  being  in  force  in  the  state  on  which  the  demand  for 
surrender  is  made. 

Article  IV 

The  arrest  and  detention  of  a  fugitive  may  be  applied  for  on 
information,  even  by  telegraph,  of  the  existence  of  a  judgment 
of  conviction  or  of  a  warrant  of  arrest. 

In  France,  the  apphcation  for  arrest  and  detention  shall  be 
addressed  to  the  Minister  for  Foreign  Affairs  who  will  trans- 
mit it  to  the  proper  department. 

In  the  United  States,  the  apphcation  for  arrest  and  deten- 
tion shall  be  addressed  to  the  Secretary  of  State,  who  shall 
deliver  a  warrant  certifying  that  the  application  is  regularly 
made  and  requesting  the  competent  authorities  to  take  action 
thereon  in  conformity  to  statute. 


154  DOCUMENTS  ON   INTERNATIONAL  LAW 

In  both  countries,  in  case  of  urgency,  the  application  for 
arrest  and  detention  may  be  addressed  directly  to  the  competent 
magistrate  in  conformity  to  the  statutes  in  force. 

In  both  countries,  the  person  provisionally  arrested  shall  be 
released,  unless  within  forty  days  from  the  date  of  arrest  in 
France,  or  from  the  date  of  commitment  in  the  United  States, 
the  formal  requisition  for  surrender  with  the  documentary 
proofs  hereinbefore  prescribed  be  made  as  aforesaid  by  the 
diplomatic  agent  of  the  demanding  government  or,  in  his 
absence,  by  a  consular  officer  thereof. 

Article  V 
Neither  of  the  contracting  parties  shall  be  bound  to  deliver 
up  its  own  citizens  or  subjects  under  the  stipulations  of  this 
convention. 

Article  VI 

A  fugitive  criminal  shall  not  be  surrendered  if  the  offence 
in  respect  of  which  his  surrender  is  demanded  be  of  a  political 
character,  or  if  he  proves  that  the  requisition  for  his  surrender 
has,  in  fact,  been  made  with  a  view  to  try  or  punish  him  for  an 
offence  of  a  political  character.  { 

If  any  question  shall  arise  as  to  whether  a  case  comes  within 
the  provisions  of  this  article,  the  decision  of  the  authorities 
of  the  government  on  which  the  demand  for  surrender  is  made 
shall  be  final. 

Article  VII 
No  person  surrendered  by  either  of  the  high  contracting 
parties  to  the  other  shall  be  triable  or  tried  or  be  punished  for 
any  crime  or  offence  committed  prior  to  his  extradition,  other 
than  the  offence  for  which  he  was  delivered  up,  nor  shall  such 
person  be  arrested  or  detained  on  civil  process  for  a  cause 
accrued  before  extradition,  unless  he  has  been  at  Uberty  for  one 
month  after  having  been  tried,  to  leave  the  country,  or,  in  case 
of  conviction,  for  one  month  after  having  suffered  his  punish- 
ment or  having  been  pardoned. 


THE  LAW  OF  PEACE  155 

Article  VIII 

Extradition  shall  not  be  granted,  in  pursuance  of  the  pro- 
visions of  this  convention,  if  the  person  claimed  has  been  tried 
for  the  same  act  in  the  country  to  which  the  requisition  is  ad- 
dressed, or  if  legal  proceedings  or  the  enforcement  of  the  penalty 
for  the  act  committed  by  the  person  claimed  have  become 
barred  by  limitation,  according  to  the  laws  of  the  country  to 
which  the  requisition  is  addressed. 

Article  IX 

If  the  person  whose  extradition  may  be  claimed,  pursuant  to 
the  stipulations  hereof,  be  actually  under  prosecution  for  a 
crime  or  offence  in  the  country  where  he  has  sought  asylum,  or 
shall  have  been  convicted  thereof,  his  extradition  may  be 
deferred  until  such  proceedings  be  terminated,  and  until  such 
criminal  shall  be  set  at  liberty  in  due  course  of  law. 

Article  X 
If  the  individual  claimed  by  one  of  the  high  contracting 
parties,  in  pursuance  of  the  present  treaty,  shall  also  be  claimed 
by  one  or  several  other  Powers  on  account  of  crimes  or  offences 
committed  within  their  respective  jurisdictions,  his  extradition 
shall  be  granted  to  the  state  whose  demand  is  first  received; 
provided,  that  the  government  from  which  extradition  is  asked 
is  not  bound  by  treaty,  in  case  of  concurrent  demands,  to  give 
preference  to  the  one  earliest  in  date,  in  which  event  that  shall 
be  the  rule;  and  provided  that  no  other  arrangement  is  made 
between  the  demanding  governments  according  to  which  prefer- 
ence may  be  given  either  on  account  of  the  gravity  of  the  crime 
committed  or  for  any  other  reason. 

Article  XI 

All  articles  seized  which  were  in  the  possession  of  the  person 

to  be  surrendered  at  the  time  of  his  apprehension,  whether 

being  the  proceeds  of  the  crime  or  offence  charged,  or  being 

material  as  evidence  in  making  proof  of  the  crime  or  offence, 


156  DOCUMENTS  ON  INTERNATIONAL  LAW 

shall,  so  far  as  practicable,  and  if  the  competent  authority  of 
the  state  applied  to  orders  the  dehvery  thereof,  be  given  up 
when  the  extradition  takes  place.  Nevertheless,  the  rights  of 
third  parties  with  regard  to  the  articles  aforesaid  shall  be  duly 
respected. 

Article  XII 

The  expenses  incurred  in  the  arrest,  detention,  examination 
and  dehvery  of  fugitives  under  this  treaty  shall  be  borne  by 
the  state  in  whose  name  the  extradition  is  sought;  provided,  that 
the  demanding  government  shall  not  be  compelled  to  l)ear  any 
expense  for  the  services  of  such  pubhc  officers  or  functionaries 
of  the  government  from  which  extradition  is  sought  as  receive 
a  fixed  salary;  and  provided,  that  the  charge  for  the  services 
of  such  pubhc  officers  or  functionaries  as  receive  only  fees  or 
perquisites  shall  not  exceed  their  customary  fees  for  the  acts  or 
services  performed  by  them  had  such  acts  or  services  been  per- 
formed in  ordinary  criminal  proceedings  under  the  laws  of  the 
country  of  which  they  are  officers  or  functionaries. 

Article  XIII 

In  the  colonies  and  other  possessions  of  the  two  high 
contracting  parties,  the  manner  of  proceeding  may  be  as 
follows : 

The  requisition  for  the  surrender  of  a  fugitive  criminal  who 
has  taken  refuge  in  a  colony  or  foreign  possession  of  either  party 
may  be  made  to  the  governor  or  chief  authority  of  such  colony 
or  possession  by  the  chief  consular  officer  of  the  other  in  such 
colony  or  possession;  or  if  the  fugitive  has  escaped  from  a 
colony  or  foreign  possession  of  the  party  on  whose  behalf  the 
requisition  is  made,  by  the  governor  or  chief  authority  of  such 
colony  or  possession. 

Such  requisitions  may  be  disposed  of,  subject  always,  as 
nearly  as  may  be,  to  the  provisions  of  this  treaty,  by  the  respec- 
tive governors  or  chief  authorities,  who,  however,  shall  be  at 
liberty  either  to  grant  the  surrender  or  refer  the  matter  to  their 
government. 


THE  LAW  OF  PEACE  157 

Article  XIV 

The  present  treaty  shall  take  effect  on  the  thirtieth  day  after 
the  date  of  the  exchange  of  ratifications,  and  shall  not  operate 
retroactively. 

On  the  day  on  which  it  takes  effect,  the  conventions  of 
November  9,  1843,  February  24,  1845,  and  February  10,  1858, 
shall  cease  to  be  in  force  except  as  to  crimes  therein  enumerated 
and  committed  prior  to  that  date. 

The  ratifications  of  this  treaty  shall  be  exchanged  at  Paris 
as  soon  as  possible,  and  it  shall  remain  in  force  for  a  period  of 
six  months  after  either  of  the  two  governments  shall  have  given 
notice  of  a  purpose  to  terminate  it.  —  (Supplement  to  the  Ameri- 
can Journal  of  International  Law,  Oct.,  1911,  pp.  234-249.) 

32.   Extract  from  the  Rules  on  Extradition  voted  by  the 
Institute  of  International  Law  at  Geneva,  1892 

Article  XIV 

Criminal  acts  directed  against  the  foundations  of  the  whole 
social  order,  and  not  merely  against  a  particular  state  or  a 
particular  form  of  govermnent  are  not  to  be  regarded  as  poUtical 
offences  from  the  point  of  view  of  the  appUcation  of  the  pre- 
ceding rules.  —  (Annuaire  de  VInstitut  de  Droit  International, 
1892-94,  pp.  181-82.) 

Note.  —  The  rules  referred  to  declared  that  those  who  were  concerned 
in  acts  done  in  the  course  of  a  rebellion  or  civil  war  should  not  be  extra- 
dited unless  the  acts  in  question  were  forbidden  by  the  laws  of  war,  and  that, 
in  the  case  of  offenses  that  are  both  political  in  motive  and  object  and  also 
ordinary  crimes,  extradition  should  not  be  granted  unless  they  were  of  a 
very  serious  character,  such  as  assassination  or  arson.  The  protection 
accorded  by  these  rules  was  taken  away  by  the  Article  reproduced  above 
from  those  who  are  in  revolt  against  the  existing  social  order. 


158  DOCUMENTS  ON   INTERNATIONAL  LAW 

33.   The  Concert  of  Europe 

Extracts  from  Speeches  by  the  Late  Lord  Salisbury 
AND  Sir  Edward  Grey 


Lord  Salisbury 

The  peace  of  Europe  is  enormously  important.  If  the 
Concert  of  Europe  had  not  existed,  that  peace  would  have  been 
exposed  to  great  danger.  Every  statesman  in  Europe  looked 
forward  to  the  reopening  of  the  Eastern  Question  with  dread 
as  something  which  might  hght  the  flames  of  war  in  Europe. 
It  is  the  great  praise  and  achievement  of  the  Concert  of  Europe 
that  it  has  prevented  that  terrible  calamity.  .  .  .  Remember 
this,  that  this  Federation  of  Europe  is  the  embryo  of  the  only 
possible  structure  of  Europe  which  can  save  civiUsation  from 
the  desolating  effects  of  a  disastrous  war.  On  all  sides  the 
instruments  of  destruction  are  piling  up.  .  .  .  The  one  hope 
we  have  to  prevent  this  from  ending  in  a  terrible  effort  of 
mutual  destruction  which  will  be  fatal  to  Christian  civilisation 
is  that  the  Powers  may  gradually  be  brought  to  act  in  a  friendly 
spirit,  until  at  last  they  shall  be  welded  together  in  some  inter- 
national constitution  which  shall  give  to  the  world  as  the  result 
of  their  great  strength  a  long  spell  of  unfettered  commerce, 
prosperous  trade  and  continued  peace.  —  (Speech  at  the  Mansion 
House,  Nov.  9,  1897.) 

B 

Sir  Edward  Grey 

There  is  another  matter  of  vital  importance,  and  that  is  that 
the  Great  Powers  should  continue  to  keep  in  touch  with  each 
other  and  that  no  one  of  them  should  take  any  action  which 
is  likely  to  cause  differences  between  them.  That  has  been 
the  object  which  we  have  striven  to  promote  in  common  with 
other  Powers,  and  that  is  the  object  for  which  we  shall  continue 
to  strive.  The  Great  Powers  have  in  the  course  of  the  last  few 
months  come  to  certain  decisions  among  themselves,  especially 


THE  LAW  OF  PEACE  159 

with  regard  to  Albania,  which  have  contributed  materially  to 
preserve  harmony  between  them.  It  is,  of  course,  essential 
that  nothing  which  happens  in  the  war  now  proceeding  in  the 
Balkans  should  upset  these  decisions,  which  are  valuable  assets 
on  the  side  of  harmony  between  the  parties.  There  are  other 
matters  still  to  be  decided  between  the  Powers  to  secure  com- 
plete agreement  among  them.  Those  we  shall  continue  to  dis- 
cuss and  with  those,  I  trust,  we  shall  make  some  progress. 
But  the  best  prospect  I  can  put  before  the  House  is  that  the  war 
now  proceeding  in  the  Balkans  is  so  exhausting  .  .  .  that  the 
mere  intensity  of  it  should  bring  it  to  a  conclusion,  and  that  no 
complication  should  arise  out  of  it  which  will  make  any  of  the 
Great  Powers  lose  touch  with  or  endanger  the  Concert  of 
Europe.  .  .  .  The  first  business  of  the  Concert  of  Europe  after 
all  is  to  preserve  itself  and  to  preserve  harmony  between  its 
component  parts.  If  that  failed  the  consequences  to  Europe 
would  be  far  more  disastrous  than  anything  which  has  yet 
occurred.  —  {Speech  in  the  House  of  Commons,  July  14,  1913.) 

34.   The  Monroe  Doctrine 

At  the  proposal  of  the  Russian  Imperial  Government,  made 
through  the  minister  of  the  Emperor  residing  here,  a  full  power 
and  instructions  have  been  transmitted  to  the  Minister  of  the 
United  States  at  St.  Petersburg,  to  arrange,  by  amicable  negotia- 
tion, the  respective  rights  and  interests  of  the  two  nations  on 
the  north-west  of  this  continent.  A  similar  proposal  had  been 
made  by  his  Imperial  Majesty  to  the  Government  of  Great 
Britain,  which  has  hkewise  been  acceded  to.  The  Government 
of  the  United  States  has  been  desirous,  by  this  friendly  pro- 
ceeding, of  manifesting  the  great  value  which  they  have  in- 
variably attached  to  the  friendship  of  the  Emperor,  and  their 
solicitude  to  cultivate  the  best  understanding  with  his  govern- 
ment. In  the  discussions  to  which  this  interest  has  given  rise 
and  in  the  arrangements  by  which  they  may  terminate,  the 
occasion  has  been  judged  proper  for  asserting,  as  a  principle  in 
which  the  rights  and  interests  of  the  United  States  are  involved, 


160  DOCUMENTS  ON   INTERNATIONAL  LAW 

that  the  American  continents,  by  the  free  and  independent 
condition  which  they  have  assumed  and  maintain,  are  hence- 
forth not  to  be  considered  as  subjects  for  future  colonization  by 
any  European  powers. 

The  citizens  of  the  United  States  cherish  sentiments  the  most 
friendly  in  favor  of  the  liberty  and  happiness  of  their  fellow 
men  on  that  side  of  the  Atlantic.  In  the  wars  of  the  European 
powers,  in  matters  relating  to  themselves,  we  have  never  taken 
any  part,  nor  does  it  comport  with  our  policy  to  do  so.  It  is 
only  when  our  rights  are  invaded  or  seriously  menaced,  that 
we  resent  injuries  or  make  preparation  for  our  defence.  With 
the  movements  in  this  hemisphere  we  are,  of  necessity,  more 
immediately  connected,  and  by  causes  which  must  be  obvi- 
ous to  all  enlightened  and  impartial  observers.  The  political 
system  of  the  alhed  powers  is  essentially  different  in  this 
respect  from  that  of  America.  This  difference  proceeds  from 
that  which  exists  in  their  respective  governments.  And  to 
the  defence  of  our  own,  which  has  been  achieved  by  the  loss  of 
so  much  blood  and  treasure,  and  matured  by  the  wisdom  of 
our  most  enlightened  citizens,  and  under  which  we  have  en- 
joyed unexampled  fehcity,  this  whole  nation  is  devoted.  We 
owe  it,  therefore,  to  candor  and  to  the  amicable  relations 
existing  between  the  United  States  and  those  powers  to  declare 
that  we  should  consider  any  attempt  on  their  part  to  extend 
their  system  to  any  portion  of  this  hemisphere  as  dangerous  to 
our  peace  and  safety.  With  the  existing  colonies  or  dependen- 
cies of  any  European  power  we  have  not  interfered,  and  shall 
not  interfere.  But  with  the  Governments  who  have  declared 
their  independence  and  maintained  it,  and  whose  independence 
we  have,  on  great  consideration  and  on  just  principles,  acknowl- 
edged, we  could  not  view  any  interposition  for  the  purpose  of 
oppressing  them,  or  controlling  in  any  other  manner  their 
destiny,  by  any  European  power,  in  any  other  light  than  as 
the  manifestation  of  an  unfriendly  disposition  towards  the 
United  States. 


THE  LAW  OF  PEACE  161 

Our  policy  in  regard  to  Europe,  which  was  adopted  at  an 
early  stage  of  the  wars  which  have  so  long  agitated  that  quarter 
of  the  globe,  nevertheless  remains  the  same,  which  is,  not  to 
interfere  in  the  internal  concerns  of  any  of  its  powers;  to  con- 
sider the  Government  de  facto  as  the  legitimate  Government 
for  us;  to  cultivate  friendly  relations  with  it,  and  to  preserve 
those  relations  by  a  frank,  firm,  and  manly  policy;  meeting,  in 
all  instances,  the  just  claims  of  every  power,  submitting  to 
injuries  from  none.  But  in  regard  to  these  continents,  circum- 
stances are  eminently  and  conspicuously  different.  It  is  im- 
possible that  the  allied  powers  should  extend  their  political 
system  to  any  portion  of  either  continent  without  endangering 
our  peace  and  happiness;  nor  can  anyone  beUeve  that  our 
southern  brethren,  if  left  to  themselves,  would  adopt  it  of  their 
own  accord.  It  is  equally  impossible,  therefore,  that  we  should 
behold  such  interposition,  in  any  form,  with  indifference.  — 
(Message  of  President  Monroe,  Dec.  2,  1823.) 

35.    Memorandum  of  Mr.  Hay,  United  States  Secretary 

of  State,  to  the  Imperial  German  Embassy,  1901, 

Concerning  the  Monroe  Doctrine 

The  President  in  his  message  of  the  3rd  of  December,  1901, 
used  the  following  language:  "The  Monroe  doctrine  is  a  decla- 
ration that  there  must  be  no  territorial  aggrandizement  by  any 
non-American  power  at  the  expense  of  any  American  power 
on  American  soil.  It  is  in  no  wise  intended  as  hostile  to  any 
nation  in  the  Old  World."  The  President  further  said:  "This 
doctrine  has  nothing  to  do  with  the  commercial  relations  of 
any  American  power,  save  that  it  in  truth  allows  each  of  them  to 
form  such  as  it  desires.  .  .  .  We  do  not  guarantee  any  State 
against  punishment  if  it  misconducts  itself,  provided  that 
punishment  does  not  take  the  form  of  the  acquisition  of  terri- 
tory by  any  non- American  power." 

His  Excellency  the  German  Ambassador,  on  his  recent  return 
from  Berlin,  conveyed  personally  to  the  President  the  assurance 
of  the  German  Emperor  that  His  Majesty's  Government  had 


162  DOCUMENTS  ON  INTERNATIONAL  LAW 

no  purpose  or  intention  to  make  even  the  smallest  acquisition 
of  territory  on  the  South  American  Continent  or  the  islands 
adjacent.  This  voluntary  and  friendly  declaration  was  after- 
wards repeated  to  the  Secretary  of  State,  and  was  received  by 
the  President  and  the  people  of  the  United  States  in  the  frank 
and  cordial  spirit  in  which  it  was  offered.  In  the  memorandum  of 
the  11th  of  December,  his  Excellency  the  German  Ambassador 
repeats  these  assurances  as  follows:  "We  declare  especially 
that  under  no  circumstances  do  we  consider  in  our  proceedings 
the  acquisition  or  the  permanent  occupation  of  Venezuelan 
territory." 

In  the  said  memorandum  of  the  lltli  of  December,  the  Ger- 
man Government  informs  that  of  the  United  States  that  it  has 
certain  just  claims  for  money  and  for  damages  wrongfully  with- 
held from  German  subjects  by  the  Government  of  Venezuela, 
and  that  it  proposes  to  take  certain  coercive  measures  described 
in  the  memorandum  to  enforce  the  payment  of  these  just  claims. 

The  President  of  the  United  States,  appreciating  the  cour- 
tesy of  the  German  Government  in  making  him  acquainted 
with  the  state  of  affairs  referred  to,  and  not  regarding  himself 
as  called  upon  to  enter  into  the  consideration  of  the  claims  in 
question,  believes  that  no  measures  will  be  taken  in  this  matter 
by  the  agents  of  the  German  Goverrmaent  which  are  not  in 
accordance  with  the  well-known  purpose,  above  set  forth,  of 
His  Majesty  the  German  Emperor.  —  (Moore,  International 
Law  Digest,  VI,  590.) 


36.    President  Roosevelt  on  the  Monroe  Doctrine,  1904 

It  is  not  true  that  the  United  States  feels  any  land  hunger 
or  entertains  any  projects  as  regards  the  other  nations  of  the 
Western  Hemisphere  save  such  as  are  for  their  welfare.  All 
that  this  country  desires  is  to  see  the  neighbouring  countries 
stable,  orderly,  and  prosperous.  Any  country  whose  people 
conduct  themselves  well  can  count  upon  our  hearty  friendship. 
If  a  nation  shows  that  it  knows  how  to  act  with  reasonable  effi- 
ciency and  decency  in  social  and  political  matters,  if  it  keeps 


THE  LAW  OF  PEACE  163 

order  and  pays  its  obligations,  it  need  fear  no  interference  from 
the  United  States.  Chronic  wrongdoing,  or  an  impotence  which 
results  in  a  general  loosening  of  the  ties  of  civilized  society,  may 
in  America,  as  elsewhere,  ultimately  require  intervention  by 
some  civihzed  nation,  and  in  the  Western  Hemisphere  the 
adherence  of  the  United  States  to  the  Monroe  doctrine  may 
force  the  United  States,  however  reluctantly,  in  flagrant  cases 
of  such  wrongdoing  or  impotence,  to  the  exercise  of  an  inter- 
national poUce  power.  If  every  country  washed  by  the  Carib- 
bean Sea  would  show  the  progress  in  stable  and  just  civilization 
which  with  the  aid  of  the  Piatt  amendment  Cuba  has  shown 
since  our  troops  left  the  island,  and  which  so  many  of  the  re- 
publics in  both  Americas  are  constantly  and  brilHantly  showing, 
all  question  of  interference  by  this  nation  with  their  affairs 
would  be  at  an  end.  Our  interests  and  those  of  our  southern 
neighbours  are  in  reaUty  identical.  They  have  great  natural 
riches,  and  if  within  their  borders  the  reign  of  law  and  justice 
obtains,  prosperity  is  sure  to  come  to  them.  While  they  thus 
obey  the  primary  laws  of  civihzed  society  they  may  rest  assured 
that  they  will  be  treated  by  us  in  a  spirit  of  cordial  and  helpful 
sympathy.  We  would  interfere  with  them  only  in  the  last 
resort,  and  then  only  if  it  became  evident  that  their  inability 
or  unwilhngness  to  do  justice  at  home  and  abroad  had  violated 
the  rights  of  the  United  States  or  had  invited  foreign  aggression 
to  the  detriment  of  the  entire  body  of  American  nations.  It  is 
a  mere  truism  to  say  that  every  nation,  whether  in  America 
or  anywhere  else,  which  desires  to  maintain  its  freedom,  and  its 
independence,  must  ultimately  reahze  that  the  right  to  such 
independence  cannot  be  separated  from  the  responsibiUty  of 
making  good  use  of  it.  —  {Annual  Message,  Dec.  6,  1904.) 

37.   Responsibilities  connected  with  the  Monroe  Doctrine 

The  United  States  and  the  Republic  of 
Santo  Domingo 

I  submit  herewith  a  protocol  concluded  between  the  Domini- 
can Repubhc  and  the  United  States. 


164  DOCUMENTS  ON  INTERNATIONAL  LAW 

The  conditions  in  the  Republic  of  Santo  Domingo  have  been 
growing  steadily  worse  for  many  years.  There  have  been  many 
disturbances  and  revolutions,  and  debts  have  been  contracted 
beyond  the  power  of  the  Republic  to  repay.  Some  of  these 
debts  were  properly  contractcnl  and  are  lield  by  those  who  have 
a  legitimate  right  to  their  money.  Others  are  without  ques- 
tion improper  or  exorbitant,  constituting  claims  which  should 
never  be  paid  in  full  and  perlia])s  only  to  the  extent  of  a  very 
small  portion  of  their  nominal  value. 

Certain  foreign  countries  have  long  felt  themselves  aggrieved 
because  of  the  non-payment  of  de])ts  due  their  citizens.  The 
only  way  by  which  foreign  creditors  could  ever  obtain  from  the 
RepubUc  itself  any  guaranty  of  payment  would  be  either  by  the 
acquisition  of  territory  outright  or  temporarily,  or  else  by  taking 
possession  of  the  custom-houses,  which  would  of  course  in  itself, 
in  effect,  be  taking  possession  of  a  certain  amount  of  territory. 

It  has  for  some  time  been  obvious  that  those  who  ])rofit  by 
the  Monroe  doctrine  must  accept  certain  responsibilities  along 
with  the  rights  which  it  confers;  and  that  the  same  statement 
applies  to  those  who  uphold  the  doctrine.  It  cannot  be  too 
often  and  too  emphatically  asserted  that  the  United  States  has 
not  the  slightest  desire  for  territorial  aggrandizement  at  the 
expense  of  any  of  its  southern  neighbours,  and  will  not  treat 
the  Monroe  doctrine  as  an  excuse  for  aggrandizement  on  its 
part.  We  do  not  propose  to  take  any  part  of  Santo  Domingo,  or 
exercise  any  other  control  over  the  island  save  what  is  necessary 
to  its  financial  rehabihtation  in  connection  with  the  collection 
of  revenue,  part  of  which  will  be  turned  over  to  the  Govern- 
ment to  meet  the  nc^cessary  expense  of  running  it,  and  part  of 
which  will  be  distributed  yro  rata  among  the  creditors  of  the 
Republic  upon  a  basis  of  absolute  equity.  The  justification  for 
the  United  States  taking  this  burden  and  incurring  this  re- 
sponsibiUty  is  to  be  found  in  the  fact  that  it  is  incompatible 
with  international  equity  for  the  United  States  to  refuse  to 
allow  other  powers  to  take  the  only  means  at  their  disposal  of 
satisfying  the  claims  of  their  creditors  and  yet  to  refuse  to  take, 
itself,  any  such  steps. 


THE  LAW  OF  PEACE  165 

An  aggrieved  nation  can  without  interfering  with  the  Monroe 
doctrine  take  what  action  it  sees  fit  in  the  adjustment  of  its 
disputes  with  American  states,  provided  that  action  does  not 
take  the  shape  of  interference  with  their  form  of  government 
or  of  the  despoilment  of  their  territory  imder  any  disguise. 
But,  short  of  this,  when  the  question  is  one  of  a  money  claim, 
the  only  way  which  remains,  finally,  to  collect  it  is  a  blockade, 
or  bombardment,  or  the  seizure  of  the  custom-houses,  and  this 
means,  as  has  been  said  above,  what  is  in  effect  a  possession, 
even  though  only  a  temporary  possession,  of  territory.  The 
United  States  then  becomes  a  party  in  interest,  because  under 
the  Monroe  doctrine  it  cannot  see  any  European  power  seize 
and  permanently  occupy  the  territory  of  one  of  these  Repub- 
lics; and  yet  such  seizure  of  territory,  disguised  or  undisguised, 
may  eventually  offer  the  only  way  in  which  the  power  in  ques- 
tion can  collect  any  debts,  unless  there  is  interference  on  the 
part  of  the  United  States. 

One  of  the  difficult  and  increasingly  complicated  problems, 
which  often  arise  in  Santo  Domingo,  grows  out  of  the  viola- 
tions of  contracts  and  concessions,  sometimes  improvidently 
granted,  with  valuable  privileges  and  exemptions  stipulated 
for  upon  grossly  inadequate  considerations  which  were  burden- 
some to  the  state,  and  which  are  not  infrequently  disregarded 
and  violated  by  the  governing  authorities.  Citizens  of  the 
United  States  and  of  other  governments  holding  these  conces- 
sions and  contracts  appeal  to  their  respective  governments  for 
active  protection  and  intervention.  Except  for  arbitrary  wrong, 
done  or  sanctioned  by  superior  authority,  to  persons  or  to  vested 
property  rights,  the  United  States  Government,  following  its 
traditional  usage  in  such  cases,  aims  to  go  no  further  than  the 
mere  use  of  its  good  offices,  a  measure  which  frequently  proves 
ineffective.  On  the  other  hand,  there  are  governments  which 
do  sometimes  take  energetic  action  for  the  protection  of  their 
subjects  in  the  enforcement  of  merely  contractual  claims,  and 
thereupon  American  concessionaries,  supported  by  powerful 
influences,  make  loud  appeal  to  the  United  States  Government 
in  similar  cases  for  similar  action.    They  complain  that  in  the 


166  DOCUMENTS  ON   INTERNATIONAL  LAW 

actual  posture  of  affairs  their  valuable  properties  are  practi- 
cally confiscated,  that  American  enterprize  is  paralyzed,  and 
that  unless  they  are  fully  protected,  even  by  the  enforcement 
of  their  merely  contractual  rights,  it  means  the  abandonment 
to  the  subjects  of  other  governments  of  the  interests  of  American 
trade  and  commerce  through  the  sacrifice  of  their  investments 
by  excessive  taxes  imposed  in  violation  of  contract,  and  by 
other  devices,  and  the  sacrifice  of  the  output  of  their  mines  and 
other  industries,  and  even  of  their  railway  and  shipping  inter- 
ests, which  they  have  established  in  connection  with  the  ex- 
ploitation of  their  concessions.  Thus  the  attempted  solution 
of  the  complex  problem  by  the  ordinary  methods  of  diplomacy 
reacts  injuriously  upon  the  United  States  Government  itself, 
and  in  a  measure  paralyzes  the  action  of  the  Executive  in  the 
direction  of  a  sound  and  consistent  policy.  The  United  States 
Government  is  embarrassed  in  its  efforts  to  foster  American 
enterprise  and  the  gro\vth  of  our  commerce  through  the  culti- 
vation of  friendly  relations  with  Santo  Domingo,  by  the  irri- 
tating effects  on  those  relations,  and  the  consequent  injurious 
influence  upon  that  commerce,  of  frequent  interventions.  As  a 
method  of  solution  of  the  complicated  problem  arbitration  has 
become  nugatory,  inasmuch  as,  in  the  condition  of  its  finances, 
an  award  against  the  Republic  is  worthless  unless  its  payment 
is  secured  by  the  pledge  of  at  least  some  portion  of  the  customs 
revenues.  This  pledge  is  ineffectual  without  actual  delivery 
over  of  the  custom-houses  to  secure  the  appropriation  of  the 
pledged  revenues  to  the  payment  of  the  award.  This  situation 
again  reacts  injuriously  upon  the  relations  of  the  United  States 
with  other  nations.  For  when  an  award  and  such  security  are 
thus  obtained,  as  in  the  case  of  the  Santo  Domingo  Improve- 
ment Company,  some  foreign  government  complains  that  the 
award  conflicts  with  its  rights,  as  a  creditor,  to  some  portion  of 
these  revenues  under  an  alleged  prior  pledge;  and  still  other 
governments  complain  that  an  award  in  any  considerable  sum, 
secured  by  pledges  of  the  customs  revenues,  is  prejudicial  to 
the  payment  of  their  equally  meritorious  claims  out  of  the  or- 
dinary revenues;   and  thus  controversies  arc  begotten  between 


THE  LAW  OF  PEACE  167 

the  United  States  and  other  creditor  nations  because  of  the 
apparent  sacrifice  of  some  of  their  claims,  which  may  be  just 
or  may  be  grossly  exaggerated,  but  which  the  United  States 
Government  cannot  inquire  into  Avithout  giving  grounds  of 
offence  to  other  friendly  creditor  nations.  Still  further  illus- 
trations might  easily  be  furnished  of  the  hopelessness  of  the 
present  situation  growing  out  of  the  social  disorders  and  the 
bankrupt  finances  of  the  Dominican  Republic,  where  for  con- 
siderable periods  during  recent  years  the  bonds  of  civil  society 
have  been  practically  dissolved. 

Under  the  accepted  law  of  nations  foreign  governments  are 
within  their  right,  if  they  choose  to  exercise  it,  when  they  ac- 
tively intervene  in  support  of  the  contractual  claims  of  their 
subjects.  They  sometimes  exercise  this  power,  and  on  account 
of  commercial  rivalries  there  is  a  growing  tendency  on  the  part 
of  other  governments  more  and  more  to  aid  diplomatically  in 
the  enforcement  of  the  claims  of  their  subjects.  In  view  of  the 
dilemma  in  which  the  Government  of  the  United  States  is  thus 
placed  it  must  either  adhere  to  its  usual  attitude  of  non-inter- 
vention in  such  cases  —  an  attitude  proper  under  normal  con- 
ditions, but  one  which  in  this  particular  kind  of  case  results  to 
the  disadvantage  of  its  citizens  in  comparison  with  those  of 
other  states  —  or  else  it  must,  in  order  to  be  consistent  in  its 
policy,  actively  intervene  to  protect  the  contracts  and  con- 
cessions of  its  citizens  engaged  in  agriculture,  commerce,  and 
transportation  in  competition  with  the  subjects  and  citizens  of 
other  states.  This  course  would  render  the  United  States  the 
insurer  of  all  the  speculative  risks  of  its  citizens  in  the  public 
securities  and  franchises  of  Santo  Domingo. 

Under  the  plan  in  the  protocol  herewith  submitted  to  the 
Senate,  insuring  a  faithful  collection  and  application  of  the  rev- 
enues to  the  specified  objects,  we  are  well  assured  that  this 
difficult  task  can  be  accomplished  with  the  friendly  cooperation 
and  good  will  of  all  the  parties  concerned,  and  to  the  great 
relief  of  the  Dominican  Republic. 


168  DOCUMENTS  ON  INTERNATIONAL  LAW 

In  this  case,  fortunately,  the  prudent  and  far-seeing  states- 
manship of  the  Dominican  Government  has  reheved  us  of  all 
trouble.  At  their  request  we  have  entered  into  the  agreement 
herewith  submitted.  Under  it  the  custom-houses  will  be  ad- 
ministered peacefully,  honestly,  and  economically,  45  per  cent 
of  the  proceeds  bcnng  turned  over  to  the  Dominican  Government 
and  the  remainder  being  used  by  the  United  States  to  pay  what 
proportion  of  the  debts  it  is  possible  to  pay  on  an  equitable 
basis.  The  Republic  will  be  secured  against  over-seas  aggres- 
sion. This  in  reality  entails  no  new  obligation  upon  us,  for  the 
Monroe  doctrine  means  precisely  such  a  guaranty  on  our  part. 

It  is  perhaps  unnecessary  to  state  that  no  step  of  any  kind 
has  been  taken  by  the  Administration  under  the  terms  of  the 
protocol  which  is  herewith  submitted. 

The  Republic  of  Santo  Domingo  has  by  this  protocol  wisely 
and  patriotically  accepted  the  responsibilities  as  well  as  the 
privileges  of  liberty,  and  is  showing  with  evident  good  faith 
its  purpose  to  pay  all  that  its  resources  will  permit  of  its  obliga- 
tions. More  than  this  it  cannot  do,  and  when  it  has  done  this 
we  should  not  permit  it  to  be  molested.  We  on  our  part  are 
simply  performing  in  peaceful  manner,  not  only  wdth  the  cordial 
aquiescence,  but  in  accordance  with  the  earnest  request  of  the 
Government  concerned,  part  of  that  international  duty  which 
is  necessarily  involved  in  the  assertion  of  the  Monroe  doctrine. 
We  are  bound  to  show  that  we  perform  this  duty  in  good  faith, 
and  without  any  intention  of  aggrandizing  ourselves  at  the  ex- 
pense of  our  weaker  neighbours  or  of  conducting  ourselves  other- 
wise than  so  as  to  benefit  both  these  weaker  neighbours  and 
those  European  powers  which  may  be  brought  into  contact 
with  them.  It  is  in  the  highest  degree  necessary  that  we  should 
prove  by  our  action  that  the  world  may  trust  in  our  good  faith 
and  may  understand  that  this  international  duty  will  be  per- 
formed by  us  within  our  own  sphere,  in  the  interest  not  merely 
of  ourselves,  but  of  all  other  nations,  and  with  strict  justice 
toward  all.  If  this  is  done  a  genend  acceptance  of  the  Monroe 
Doctrine  will  in  the  end  surely  follow;  and  this  will  mean  an 
increase  of  the  sphere  in  which  peaceful  measures  for  the  settle- 


THE   LAW   OF   PEACE  169 

ment  of  international  difficulties  gradually  displace  those  of  a 
warlike  character. 

We  can  point  with  just  pride  to  what  we  have  done  in  Cuba 
as  a  guaranty  of  our  good  faith.  We  stayed  in  Cuba  only  so 
long  as  to  start  her  aright  on  the  road  to  self-government,  which 
she  has  since  trod  with  such  marked  and  distinguished  success; 
and  upon  leaving  the  island  we  exacted  no  conditions  save  such 
as  would  prevent  her  from  ever  becoming  the  prey  of  the 
stranger.  Our  purpose  in  Santo  Domingo  is  as  beneficent.  The 
good  that  this  countrj^  got  from  its  action  in  Cuba  was  indirect 
rather  than  direct.  So  it  is  as  regards  Santo  Domingo.  The 
chief  material  advantage  that  will  come  from  the  action  pro- 
posed to  be  taken  will  be  to  Santo  Domingo  itself  and  to  Santo 
Domingo's  creditors.  The  advantages  that  will  come  to  the 
United  States  wdll  be  indirect,  but  nevertheless  great,  for  it  is 
supremely  to  our  interest  that  all  the  communities  immediately 
south  of  us  should  be  or  become  prosperous  and  stable,  and 
therefore  not  merely  in  name  but  in  fact  independent  and  self- 
governing. 

I  call  attention  to  the  urgent  need  of  prompt  action  on  this 
matter.  We  now  have  a  great  opportunity  to  secure  peace  and 
stability  in  the  island,  without  friction  or  bloodshed,  by  acting 
in  accordance  with  the  cordial  invitation  of  the  governmental 
authorities  themselves.  It  will  be  unfortunate  from  every 
standpoint  if  we  fail  to  grasp  this  opportunity;  for  such  failure 
will  probably  mean  increasing  revolutionary  violence  in  Santo 
Domingo,  and  very  possibly  embarrassing  foreign  complica- 
tions in  addition.  This  protocol  affords  a  practical  test  of  the. 
efficiency  of  the  United  States  Government  in  maintaining  the 
Monroe  doctrine.  —  (Message  of  President  Roosevelt  to  the 
Senate,  February,  1905.) 

Note.  —  The  plan  of  President  Roosevelt  was  carried  out  in  substance, 
and  for  the  last  few  years  an  American  Receiver  General  of  Customs 
has  controlled  Dominican  finances. 


170  DOCUMENTS  ON  INTERNATIONAL  LAW 

38.   Resolution   of  the  Fourth   International  American  Congress 
establishing  the  Pan-American  Union,  1910 

The  Fourth  International  American  Conference,  assembled 
at  Buenos  Aires  resolves: 

Article  I.  To  maintain  under  the  name  of  "Union  of  Ameri- 
can Republics"  the  International  Union  created  by  the  First 
and  confirmed  by  the  Second  and  Third  Conferences,  and  under 
the  name  of  "Pan-American  Union,"  the  institution  serving  as 
its  agent  and  having  its  seat  in  tlu^  Iniilding  of  the  American 
Repubhcs  in  the  city  of  Washington,  D.C. 

The  purposes  of  the  Pan-American  Union  are  the  following: 

1.  To  compile  and  distribute  commercial  information  and 
prepare  commercial  reports. 

2.  To  compile  and  classify  information  respecting  the  treaties 
and  conventions  between  the  American  Republics  and  between 
these  and  other  States,  and  respecting  their  legislation  in  force. 

3.  To  supply  information  on  educational  matters. 

4.  To  prepare  reports  on  questions  assigned  to  it  by  resolu- 
tions of  the  International  American  Conferences. 

5.  To  assist  in  obtaining  the  ratification  of  the  resolutions 
and  conventions  adopted  by  the  Conferences. 

6.  To  carry  into  effect  all  resolutions  the  execution  of  which 
may  have  been  assigned  or  may  hereafter  be  assigned  to  it  by 
the  International  American  Conferences. 

7.  To  act  as  a  permanent  committee  of  the  International 
American  Conferences,  recommending  topics  to  be  included 
in  the  programme  of  the  next  Conference.  These  subjects  must 
be  communicated  to  the  various  Governments  forming  the  Union 
at  least  six  months  before  the  date  of  the  meeting  of  the  next 
Conference. 

8.  To  submit  within  the  same  period  a  report  to  the  various 
Governments  on  the  work  of  the  Pan-American  Union  during 
the  term  covered  since  the  meeting  of  the  last  Conference,  and 
also  special  reports  on  any  matter  which  may  have  been  referred 
to  it  for  report. 


THE   LAW   OF   PEACE  171 

9.  To  keep  the  records  of  the  International  American  Con- 
ferences. 

Art.  II.  The  control  of  the  Pan-American  Union  is  vested 
in  a  governing  board  consisting  of  the  diplomatic  representatives 
of  all  the  Governments  of  said  Republics  accredited  to  the 
Government  of  the  United  States  of  America  and  the  Secretary 
of  State  of  the  United  States,  upon  whom  the  American  Repub- 
lics have  conferred  the  chairmanship  of  the  governing  board. 

Art.  III.  Any  diplomatic  representative  unable  to  attend 
the  meetings  of  the  board  may  transmit  his  vote,  stating  his 
reason  therefor  in  Avriting.  A  representation  by  proxy  is 
prohibited. 

Any  Republic  having  no  representative  accredited  before 
the  Government  of  the  United  States  of  America  may  designate 
a  member  of  the  governing  board  to  represent  said  Republic 
in  the  Union  of  American  Republics,  and  in  this  case  said  repre- 
sentative shall  have  a  vote  for  each  country  represented. 

Art.  IV.  The  governing  board  shall  hold  a  regular  meeting 
the  first  Wednesday  of  every  month,  excepting  the  months  of 
June,  July,  and  August,  and  special  meetings  at  the  call  of  the 
chairman,  issued  on  his  own  initiative  or  at  the  request  of  two 
members  of  the  board. 

The  attendance  of  five  members  at  any  regular  or  special 
meeting  shall  be  sufficient  to  permit  the  board  to  proceed  with 
the  transaction  of  business. 

Art.  V.  In  the  absence  of  the  Secretary  of  State  of  the  United 
States  of  America  the  meetings  of  the  governing  board  shall  be 
presided  over  by  one  of  the  diplomatic  representatives  in  Wash- 
ington then  present  by  order  of  rank  and  seniority  and  wdth  the 
title  of  vice-chairman. 

Art.  VI.  At  the  regular  meeting  to  be  held  in  November  the 
governing  board  shall  fix  by  lot  the  order  of  precedence  among 
all  the  representatives  of  the  American  Republics  forming  the 
Union  in  order  to  create  a  supervisory  committee.  The  first 
four  on  this  list  and  the  Secretary  of  State  of  the  United  States 
of  America  shall  constitute  the  first  supervisory  committee, 
and  the  four  members  of  the  committee  shall  be  replaced  by 


172  DOCUMENTS  ON   INTERNATIONAL  LAW 

turn,  one  every  year,  so  that  the  committee  will  be  totally  re- 
newed in  four  years.  The  outgoing  members  shall  always  be 
replaced  by  those  following  on  the  list,  the  same  method  being 
observed  in  the  event  of  resignation. 

The  Secretary  of  State  of  the  United  States  of  America  shall 
always  be  the  chairman  of  the  committee. 

The  supervisory  committee  shall  hold  their  regular  meetings 
the  first  Monday  of  every  month,  and  three  members  shall  be 
sufficient  to  constitute  a  quorum. 

Art.  VII.  There  shall  be  a  Director-General,  appointed  by 
the  governing  board,  and  an  assistant  director,  who  shall  also 
discharge  the  duties  of  secretary  of  the  governing  board. 

Art.  VIII.  The  Director-General  shall  have  charge  of  the 
administration  of  the  Pan-American  Union,  in  accordance  with 
these  fundamental  rules,  the  regulations,  and  the  resolutions 
of  the  -governing  board. 

He  shall  have  charge  of  the  correspondence  with  the  Govern- 
ments of  the  Union  through  their  diplomatic  representatives 
in  Washington,  or  directly  in  the  absence  of  such  representatives, 
and  with  the  Pan-American  committees.  He  must  attend  in  an 
advisory  capacity  the  meetings  of  the  governing  board,  of  the 
committees,  and  of  the  American  International  Conferences, 
except  in  the  case  of  resolution  to  the  contrary. 

Art.  IX.  The  personnel  of  the  Pan-American  Union,  the 
number  of  employees,  their  appointment,  duties,  and  all  matters 
pertaining  thereto,  shall  be  determined  by  the  regulations. 

Art.  X.  There  shall  be  in  the  capital  of  each  of  the  Republics 
of  this  Union  a  Pan-American  committee  responsible  to  the 
Minister  of  Foreign  Affairs,  consisting,  if  possible,  of  persons 
who  have  been  delegates  to  some  International  American  Con- 
ference, their  duties  being: 

(a)  To  obtain  the  approval  of  the  resolutions  adopted  by 
these  Conferences. 

(6)  To  furnish  promptly  to  the  Pan-American  Union  all  the 
accurate  data  needed  for  the  preparation  of  its  work. 

(c)  To  submit  on  its  own  initiative  any  projects  it  may  deem 
proper  to  foster  the  interests  of  the  Union,  and  to  exercise  such 


THE   LAW   OF   PEACE  173 

further  functions  as  the  respective  Governments  may  deem 
proper. 

These  committees  shall  correspond  with  the  Pan-American 
Union  either  directly  or  through  the  diplomatic  representatives 
in  Washington. 

Each  Government  represented  in  the  Union  is  entitled  to 
send  to  the  Pan-American  Union,  at  its  own  expense,  a  special 
agent  representing  the  respective  Pan-American  committee, 
to  furnish  such  data  and  reports  as  may  be  requested  of  him, 
and  at  the  same  time  to  obtain  any  information  that  his 
Government  may  require. 

Art.  XI.  The  Director-General  of  the  Pan-American  Union 
shall  submit  at  the  regular  meeting  in  November  a  detailed 
budget  of  the  expenses  for  the  following  year.  This  budget, 
after  approval  by  the  governing  board,  shall  be  transmitted  to 
the  various  signatory  Governments  with  a  statement  of  the 
annual  quotas  which  they  are  to  contribute,  these  quotas  being 
fixed  in  proportion  to  the  population  of  each  country. 

Art.  XII.  The  Pan-American  Union  shall  issue  such  publica- 
tions as  the  governing  board  may  determine,  and  shall  publish 
a  bulletin  at  least  once  a  month. 

All  geographical  maps  published  by  the  Pan-American  Union 
shall  bear  a  statement  thereon  that  they  do  not  constitute  docu- 
ments approved  by  the  Government  of  the  country  to  which 
they  apply,  nor  by  the  Governments  of  the  countries  whose 
boundaries  appear  thereon,  unless  the  former  and  the  latter 
Governments  shall  have  expressly  given  their  approval,  which 
shall  in  such  case  also  be  stated  on  the  map.  An  identical 
statement  shall  be  made  on  the  publications  of  the  Union  save 
those  of  an  official  nature. 

All  these  publications,  with  the  exception  of  those  determined 
by  the  governing  board,  shall  be  distributed  gratuitously. 

Art.  XIII.  In  order  to  insure  the  greatest  possible  accuracy 
in  the  publications  of  the  Pan-American  Union,  each  of  the  signa- 
tory States  shall  transmit  directly  to  the  Union  two  copies  of 
all  official  documents  or  publications  relating  to  matters  con- 
nected with  the  purposes  of  the  Union,  and  with   the  same 


174  DOCUMENTS  ON  INTERNATIONAL  LAW 

object  they  shall  also  send  one  copy  to  each  of  the  Pan-American 

Committees. 

Art.  XIV.  All  correspondence  and  publications  of  the  Pan- 
American  Union  sliall  be  carried  free  of  charge  by  the  mails 
of  the  American  Republics. 

Art.  XV.  The  Pan-American  Union  shall  be  governed  by  the 
regulations  prepared  by  the  governing  board  in  accordance  with 
these  statutes. 

Art.  XVI.  The  American  Republics  bind  themselves  to 
continue  to  support  the  Pan-American  Union  for  a  term  of  ten 
years  from  this  date  and  to  pay  annually  into  the  treasury  of 
the  Pan-American  Union  their  respective  quotas.  Any  of  the 
Republics  may  cease  to  belong  to  the  Union  of  American  Re- 
publics upon  notice  to  the  governing  board  two  years  in  advance. 
The  Pan-American  Union  shall  continue  for  successive  terms  of 
ten  years  unless  twelve  months  before  the  expiration  of  such 
term  a  majority  of  members  of  the  Union  shall  have  given  official 
notice  through  the  Secretary  of  State  of  the  United  States  of 
America  of  the  desire  to  withdraw  therefrom  on  the  expiration 
of  the  term. 

Art.  XVII.  All  other  rules  and  regulations  contrary  to  the 
present  resolution  are  hereby  repealed.  —  (Supplement  to  the 
American  Journal  of  International  Lmv,  January,  1911,  pp.  7-11.) 

39.   Resolution  of  the  Fourth  International  American  Congress 
concerning  the  Pan-American  Railroad,  1910 

The  Fourth  International  American  Conference,  assembled  in 
Buenos  Aires,  resolves: 

(1)  To«  extend  the  existence,  together  with  all  its  powers,  of 
the  Committee  of  the  Pan  American  Railroad  in  Washington, 
to  which,  because  of  the  important  services  it  has  rendered,  the 
conference  hereby  expresses  its  acknowledgments. 

(2)  The  resolutions  adopted  by  the  Third  Pan  American  Con- 
ference on  this  same  point  are  hereby  confirmed. 

(3)  Taking  into  consideration  the  great  moral  and  material 
significance  involved  in  the  carrying  out  of  such  an  important 


THE   LAW   OF   PEACE  175 

work,  the  Conference  recommends  to  the  Permanent  Committee 
of  the  Pan  American  Railroad  in  Washington  that,  as  soon  as 
possible,  it  shall  gather  together  all  the  studies  and  technical 
and  financial  data  necessary  for  the  preparation  of  a  final  plan 
and  estimate  for  the  construction  of  said  work;  requests  the 
countries  interested  in  the  execution  thereof  to  adopt  and  to 
communicate  to  the  permanent  Committee  of  the  Pan  American 
Railroad  the  most  efficient  measures  concerning  the  guaranties 
or  subsidies  they  are  able  to  offer  in  order  to  facilitate  the  exe- 
cution of  this  great  common  aspiration  so  that  said  committee, 
in  view  of  these  communications,  may  propose  a  practical 
method  of  solving  this  problem  which,  if  it  were  entrusted  to 
the  isolated  action  of  some  of  the  countries  specially  interested 
therein,  it  would  be  impossible  to  carry  out,  or  would  at  least 
be  done  at  a  very  remote  date.  —  {Supplement  to  the  American 
Journal  of  International  Law,  January,  1911,  p.  11.) 

40.   Protocol  providing  for  a  Conference  between  the  five  Central 

American  Republics  under  the  Auspices  and  Direction  of 

the  United  States  and  Mexico,  1907 

We,  the  representatives  of  the  five  Central  American  Repub- 
lics having  met  in  the  city  of  Washington  at  the  instance  of  their 
Excellencies  the  Presidents  of  the  United  States  of  America 
and  of  the  United  Mexican  States  in  order  to  devise  the  means 
of  preserving  the  good  relations  among  the  said  Republics  and 
of  bringing  about  permanent  peace  in  those  countries,  and  for 
the  purpose  of  establishing  bases  conducive  to  the  attainment 
of  such  ends,  being  duly  authorized  by  our  respective  govern- 
ments, have  agreed  to  the  following: 

Article  I 

Following  a  formal  invitation  which,  as  is  understood,  is  to 
be  made  simultaneously  to  each  of  the  five  Central  American 
Republics  by  Their  Excellencies  the  Presidents  of  the  United 
States  of  America  and  of  the  United  Mexican  States,  a  Con- 
ference of  the  plenipotentiaries  to  be  appointed  for  the  purpose 


176  DOCUMENTS  ON  INTERNATIONAL  LAW 

by  the  governments  of  the  said  RepubUcs,  viz.,  Costa  Rica,  El 
Salvador,  Guatemala,  Honduras  and  Nicaragua,  shall  meet 
during  the  first  fifteen  days  of  November  next  in  the  City  of 
Washington  for  the  purpose  of  discussing  the  steps  to  be  taken 
and  the  measures  to  be  adopted  in  order  to  adjust  any  differ- 
ences which  may  exist  among  said  Republics  or  any  of  them,  and 
for  the  purpose  of  concluding  a  treaty  which  shall  determine 
their  general  relations. 

Article  II 

Their  Excellencies  the  Presidents  of  the  Central  American 
Republics  shall  invite  Their  Excellencies  the  Presidents  of  the 
United  States  of  America  and  of  the  United  Mexican  States  to 
appoint,  if  they  deem  proper,  their  respective  representatives 
to  lend  their  good  and  impartial  offices  in  a  purely  friendly  way 
towards  the  realization  of  the  objects  of  the  Conference. 

Article  III 

Until  the  Conference  meets  and  accomplishes  the  lofty  mis- 
sion devolving  upon  it,  the  five  Central  American  Republics, 
to  wdt,  Costa  Rica,  El  Salvador,  Guatemala,  Honduras  and 
Nicaragua,  agree  to  maintain  peace  and  good  relations  among 
one  another,  and  they  respectively  assume  the  obligation  not 
to  commit  or  allow  to  be  committed  any  act  which  might  dis- 
turb their  mutual  tranquillity.  To  this  end  they  shall  refrain 
from  an  armed  demonstration  on  their  respective  frontiers  and 
shall  withdraw  their  naval  forces  to  their  territorial  waters. 

Article  IV 

If  any  unforeseen  question  should  unfortunately  arise  among 
any  of  the  said  Republics  pending  the  meeting  of  the  Confer- 
ence, and  if  it  should  be  impossible  to  adjust  it  by  the  friendly 
means  of  diplomacy,  it  is  mutually  agreed  that  the  parties  con- 
cerned shall  submit  the  difference  to  the  good  counsels  of  His 
Excellency  the  President  of  the  United  States  of  America,  or 
of  the  President  of  the  United  Mexican  States  or  of  both  Presi- 
dents jointly,  according  to  circumstances  and  in  conformity  with 


THE   LAW   OF   PEACE  177 

the  agreement  to  be  concluded  for  the  purpose,  —  (Supplement 
to  the  American  Journal  of  Internatiojial  Law,  October,  1907, 
pp.  406-408.) 

Note.  —  The  Conference  met  in  December,  1907,  and  concluded  a 
number  of  Conventions  for  the  estabhshment  of  a  Central  American 
Court  of  Justice,  a  Central  American  Bureau,  a  Pedagogical  Institute,  an 
Agricultural  School,  a  School  of  Mines  and  Mechanics,  and  a  School  of 
Arts  and  Trades.  They  also  contemplated  various  other  activities.  But 
it  is  difficult  to  say  how  much  of  these  magnificent  schemes  has  survived 
the  wars  and  revolutions  which  have  since  devastated  a  large  part  of  the 
territories  referred  to. 


PART    III 

DOCUMENTS  ILLUSTRATING  QUESTIONS  CON- 
NECTED  WITH   THE   LAW  OF   WAR 

1.  Declaration  concerning  Pacific  Blockade  voted  by  the 
Institute  of  International  Law  at  Heidelberg,  1887 

T\w  establishment  of  a  Pacific  Blockade  is  not  allowed  by 
International  Law  except  under  the  following  conditions: 
L    Ships  under  a  foreign  flag  are  allowed  to  enter  freely. 

2.  The  Blockade  is  declared  and  notified  officially,  and  main- 
tained by  an  adequate  force. 

3.  Ships  of  the  blockaded  power  which  do  not  respect  the 
Blockade  may  be  sequestrated.  At  the  termination  of  the  Block- 
ade they  are  to  be  restored  with  their  cargoes  to  their  owners, 
but  without  compensation.  —  (Tableau  General  de  I'lnstitut 
de  Droit  International,  p.  133.) 

2.   Declaration  of  War 

The  Hague  Convention  of  1907  with  Regard  to  the 
Opening  of  Hostilities 

Article  1 

The  Contracting  Powers  recognize  that  hostilities  between 
them  must  not  commence  without  a  previous  and  explicit 
warning,  in  the  form  of  (>ither  a  declaration  of  war,  giving 
reasons,  or  an  ultimatum  with  a  conditional  declaration  of  war. 

Article  2 

The  existence  of  a  state  of  war  must  be  notified  to  the  neutral 
Powers  without  delay,  and  shall  not  be  held  to  affect  them  until 
after  the  receipt  of  a  notification,  whi(;h  may,  however,  be 
given  by  telegraph.     Nevertheless,  neutral  Powers  may  not 


THE  LAW  OF  WAR  179 

rely  on  the  absence  of  notification  if  it  be  established  beyond 
doubt  that  they  were  in  fact  aware  of  the  existence  of  a  state 
of  war. 

Article  3 

Article  1  of  the  present  Convention  shall  take  effect  in  case 
of  war  between  two  or  more  of  the  Contracting  Powers. 

Article  2  applies  as  between  a  belligerent  Power  which  is  a 
party  to  the  Convention  and  neutral  Powers  which  are  also 
parties  to  the  Convention. 

Article  4 

The  present  Convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  the  Hague. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  Protocol 
signed  by  the  Representatives  of  the  Powers  which  take  part 
therein  and  by  the  Netherland  Minister  for  Foreign  affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by 
means  of  a  written  notification,  addressed  to  the  Netherland 
Government  and  accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  Protocol  relating  to  the  first 
deposit  of  ratifications,  of  the  notifications  mentioned  in  the 
preceding  paragraph,  as  well  as  of  the  instruments  of  ratifica- 
tion, shall  be  immediately  sent  by  the  Netherland  Government, 
through  the  diplomatic  channel,  to  the  Powers  invited  to  the 
Second  Peace  Conference,  as  well  as  to  the  other  Powers  which 
have  acceded  to  the  Convention.  The  said  Government  shall, 
in  the  cases  contemplated  in  the  preceding  paragraph,  inform 
them  at  the  same  time  of  the  date  on  which  it  received  the 
notification. 

Article  5 

Non-signatory  Powers  may  accede  to  the  present  Convention. 

A  Power  which  desires  to  accede  notifies  its  intention  in 
writing  to  the  Netherland  Government,  forwarding  to  it  the 
act  of  accession,  which  shall  be  deposited  in  the  archives  of  the 
Government. 

The  said  Government  shall  immediately  forward  to  all  the 


180  DOCUMENTS  ON   INTERNATIONAL  LAW 

other  Powers  a  duly  certified  copy  of  tlie  notification  as  well 
as  of  the  act  of  accession,  mentioning  the  date  on  which  it 
received  the  notification. 

Article  6 
The  present  Convention  shall  take  effect,  in  the  case  of  the 
Powers  which  were  parties  to  the  first  deposit  of  ratifications, 
sixty  days  after  the  date  of  the  Protocol  recording  such  deposit, 
and,  in  the  case  of  the  Powers  which  shall  ratify  subsequently  or 
which  shall  accede,  sixty  days  after  the  notification  of  their 
ratification  or  of  their  accession  has  been  received  by  the  Nether- 
land  Government. 

Article  7 

In  the  event  of  one  of  the  High  Contracting  Parties  wishing 
to  denounce  the  present  Convention,  the  denunciation  shall  be 
notified  in  writing  to  the  Netherland  Government,  which  shall 
immediately  communicate  a  duly  certified  copy  of  the  notifica- 
tion to  all  the  other  Powers,  informing  them  of  the  date  on 
which  it  was  received. 

The  denunciation  shall  only  operate  in  respect  of  the  de- 
nouncing Power,  and  only  on  the  expiry  of  one  year  after  the 
notification  has  reached  the  Netherland  Government. 

Article  8 

A  register  kept  by  the  Netherland  Ministry  for  Foreign  affairs 
shall  record  the  date  of  the  deposit  of  ratifications  effected  in 
virtue  of  Article  4,  paragraphs  3  and  4,  as  well  as  the  date  on 
which  the  notifications  of  accession  (Article  5,  paragraph  2)  or 
of  denunciation  (Article  7,  paragraph  1)  have  been  received. 

Each  Contracting  Power  is  entitled  to  have  access  to  this 
register  and  to  be  supplied  with  duly  certified  extracts  from  it. 

3.   The  Hague  Convention  of  1907  concerning  the  Treatment  of 
Certain  Enemy  Merchantmen  at  the  Outbreak  of  Hostilities 

Article  1 
When  a  merchant-ship  belonging  to  one  of  the  belligerent 
Powers  is  at  the  commencement  of  hostilities  in  an  enemy  port, 


THE  LAW  OF  WAR  181 

it  is  desirable  that  it  should  be  allowed  to  depart  freely,  either 
immediately,  or  after  a  reasonable  number  of  days  of  grace,  and 
to  proceed,  after  being  furnished  with  a  pass,  direct  to  its  port 
of  destination  or  any  other  port  indicated  to  it. 

The  same  principles  applies  in  the  case  of  a  ship  which  has 
left  its  last  port  of  departure  before  the  commencement  of 
the  war  and  has  entered  a  port  belonging  to  the  enemy  while 
still  ignorant  that  hostilities  had  broken  out. 

Article  2 

A  merchant-ship  which,  owing  to  circumstances  beyond  its 
control,  may  have  been  unable  to  leave  the  enemy  port  within 
the  period  contemplated  in  the  preceding  Article,  or  which  was 
not  allowed  to  leave,  may  not  be  confiscated. 

The  belligerent  may  merely  detain  it,  on  condition  of  restoring 
it  after  the  war,  without  payment  of  compensation,  or  he  may 
requisition  it  on  condition  of  paying  compensation. 

Article  3 

Enemy  merchant-ships  which  left  their  last  port  of  departure 
before  the  commencement  of  the  war,  and  are  encountered  on 
the  high  seas  while  still  ignorant  of  the  outbreak  of  hostilities 
may  not  be  confiscated.  They  are  merely  liable  to  be  detained 
on  condition  that  they  are  restored  after  the  war  without  pay- 
ment of  compensation;  or  to  be  requisitioned,  or  even  destroyed, 
on  payment  of  compensation,  but  in  such  case  provision  must 
be  made  for  the  safety  of  the  persons  on  board  as  well  as  the 
preservation  of  the  ship's  papers. 

After  touching  at  a  port  in  their  own  country  or  at  a  neu- 
tral port,  such  ships  are  subject  to  the  laws  and  customs  of 
naval  war. 

Article  4 

Enemy  cargo  on  board  the  vessels  referred  to  in  Articles  1 
and  2  is  likewise  liable  to  be  detained  and  restored  after  the 
war  without  payment  of  compensation,  or  to  be  requisitioned 
on  payment  of  compensation,  with  or  without  the  ship. 


182  DOCUMENTS  ON  INTERNATIONAL  LAW 

The  same  principle  applies  in  the  case  of  cargo  on  board  the 
vessels  referred  to  in  Article  3. 

Article  6 

The  present  Convention  does  not  refer  to  merchant-ships 
which  show  by  their  build  that  they  are  intended  for  conversion 
into  warships. 

Article  6 

The  provisions  of  the  present  Convention  do  not  apply  except 
between  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Note.  —  Articles  7-11,  which  follow  thoee  printed  above  are  the  same, 
mutatis  mutandis,  as  Articles  4-8  in  the  Convention  with  regard  to  the 
Opening  of  Hostilities,  which  is  printed  as  No.  2  in  this  Part  (see  page  178). 

4.   The  Hague  Code  for  War  on  Land,  1907 
Section  I  —  Of  Belligerents 
Chapter  I  —  The  Status  of  Belligerent 

Article  1 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  the 
army,  but  also  to  militia  and  volunteer  corps  fulfilling  all  the 
following  conditions:  — 

L  They  must  be  commanded  by  a  person  responsible  for  his 
subordinates; 

2.  They  must  have  a  fixed  distinctive  sign  recognizable  at 
a  distance; 

3.  They  must  carry  arms  openly;  and 

4.  They  must  conduct  their  operations  in  accordance  with 
the  laws  and  customs  of  war. 

In  countries  where  militia  or  volunteer  corps  constitute  the 
army,  or  form  part  of  it,  they  are  included  under  the  denomina- 
tion "army." 

Article  '2 

The  inhabitants  of  a  territory  not  under  occupation,  who,  on 
the  approach  of  the  enemy,  spontaneously  take  up  arms  to 


THE  LAW  OF  WAR  183 

resist  the  invading  troops  without  having  had  time  to  organize 
themselves  in  accordance  with  Article  1,  shall  be  regarded  as 
belligerents  if  they  carry  arms  openly  and  if  they  respect  the 
laws  and  customs  of  war. 

Article  3 
The  armed  forces  of  the  belligerents  may  consist  of  combatants 
and  non-combatants.    In  the  case  of  capture  by  the  enemy,  both 
have  the  right  to  be  treated  as  prisoners  of  war. 

Chapter  II  —  Prisoners  of  War 
Article  4 

Prisoners  of  war  are  in  the  power  of  the  hostile  Government, 
but  not  of  the  individuals  or  corps  who  capture  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses  and  military 
papers,  remain  their  property. 

Article  5 

Prisoners  of  war  may  be  interned  in  a  town,  fortress,  camp, 
or  other  place,  and  are  bound  not  to  go  beyond  certain  fixed 
limits;  but  they  cannot  be  placed  in  confinement  except  as  an 
indispensable  measure  of  safety  and  only  while  the  circumstances 
which  necessitate  the  measure  continue  to  exist. 

Article  6 

The  State  may  employ  the  labour  of  prisoners  of  war,  other 
than  officers,  according  to  their  rank  and  capacity.  The  work 
shall  not  be  excessive  and  shall  have  no  connection  with  the 
operations  of  the  war. 

Prisoners  may  be  authorized  to  work  for  the  public  service, 
for  private  persons,  or  on  their  own  account. 

Work  done  for  the  State  is  paid  for  at  rates  proportional  to 
the  work  of  a  similar  kind  executed  by  soldiers  of  the  national 
army  or,  if  there  are  no  such  rates  in  force,  at  rates  proportional 
to  the  work  executed. 


184  DOCUMENTS  ON  INTERNATIONAL  LAW 

When  the  work  is  for  other  branches  of  the  pubUc  service  or 
for  private  persons  the  conditions  are  settled  in  agreement  with 
the  military  authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their 
position,  and  the  balance  shall  be  paid  them  on  their  release, 
deductions  on  account  of  the  cost  of  maintenance  excepted. 

Article  7 

The  Government  into  whose  hands  prisoners  of  war  have 
fallen  is  charged  with  tlieir  maintenance. 

In  default  of  special  agreement  between  the  belligerents, 
prisoners  of  war  shall  be  treated  as  regards  rations,  quarters, 
and  clothing  on  the  same  footing  as  the  troops  of  the  Govern- 
ment which  captured  them. 

Article  8 

Prisoners  of  war  shall  be  subject  to  the  laws,  regulations,  and 
orders  in  force  in  the  army  of  the  State  in  the  power  of  which 
they  are.  Any  act  of  insubordination  justifies  the  adoption  to- 
wards them  of  such  measures  of  severity  as  may  be  considered 
necessary. 

Escaped  prisoners  who  are  retaken  before  being  able  to  rejoin 
their  own  army  or  before  leaving  the  territory  occupied  by  the 
army  which  captured  them  are  liable  to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again  taken 
prisoners,  are  not  liable  to  any  punishment  on  account  of  their 
previous  escape. 

Article  9 

Every  prisoner  of  war  is  bound  to  give,  if  questioned  on  the 
subject,  his  true  name  and  rank,  and  if  he  infringes  this  rule, 
he  is  liable  to  have  the  advantages  given  to  prisoners  of  his  class 
curtailed. 

Article  10 

Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws  of 
their  country  allow  it,  and,  in  such  cases,  they  are  bound,  on 


THE  LAW  OF  WAR  185 

their  personal  honour,  scrupulously  to  fulfil,  both  towards  their 
own  Government  and  the  Government  by  which  they  were 
made  prisoners,  the  engagements  they  may  have  contracted. 

In  such  cases  their  own  Government  is  bound  neither  to 
require  of  nor  accept  from  them  any  service  incompatible  with 
the  parole  given. 

Article  11 

A  prisoner  of  war  cannot  be  compelled  to  accept  his  liberty 
on  parole;  similarly  the  hostile  Government  is  not  obliged  to 
accede  to  the  request  of  a  prisoner  to  be  set  at  liberty  on 
parole. 

Article  12 

Prisoners  of  war  liberated  on  parole  and  recaptured  bearing 
arms  against  the  Government  to  which  they  had  pledged  their 
honour,  or  against  the  allies  of  that  Government,  forfeit  their 
right  to  be  treated  as  prisoners  of  war,  and  may  be  put  on  trial 
before  the  Courts. 

Article  13 

Individuals  following  an  army  without  directly  belonging  to 
it,  such  as  newspaper  correspondents  or  reporters,  sutlers  or 
contractors,  who  fall  into  the  enemy's  hands  and  whom  the 
latter  thinks  it  expedient  to  detain,  are  entitled  to  be  treated 
as  prisoners  of  war,  provided  they  are  in  possession  of  a  certifi- 
cate from  the  military  authorities  of  the  army  which  they  were 
accompanying. 

Article  14 

A  bureau  for  information  relative  to  prisoners  of  war  is  insti- 
tuted at  the  commencement  of  hostilities  in  each  of  the  bellig- 
erent States,  and,  when  necessary,  in  neutral  countries  which 
have  received  belligerents  on  their  territory.  The  business  of 
this  bureau  is  to  reply  to  all  inquiries  about  the  prisoners,  to 
receive  from  the  various  services  concerned  full  information 
respecting  internments  and  transfers,  releases  on  parole,  ex- 
changes, escapes,  admissions  into  hospital,  deaths,  as  well  as 
all  other  information  necessary  to  enable  it  to  make  out  and 


186  DOCUMENTS  ON   INTERNATIONAL   LAW 

keep  up  to  date  an  individual  return  for  each  prisoner  of  war. 
The  bureau  must  state  in  this  return  the  regimental  number, 
name  and  surname,  age,  place  of  origin,  rank,  unit,  wounds, 
date  and  place  of  capture,  internment,  Avounding,  and  death,  as 
well  as  any  observations  of  a  special  character.  The  individual 
return  shall  be  sent  to  the  Government  of  the  other  belligerent 
after  the  conclusion  of  peace. 

It  is  also  the  business  of  the  information  bureau  to  gather  and 
keep  together  all  personal  effects,  valuables,  letters,  etc.,  found 
on  the  field  of  battle  or  left  by  prisoners  who  have  been  released 
on  parole,  or  exchanged,  or  who  have  escaped,  or  died  in  hospi- 
tals or  ambulances,  and  to  forward  them  to  those  concerned. 

Article  15 

Societies  for  the  relief  of  prisoners  of  war,  if  properly  consti- 
tuted in  accordance  with  the  laws  of  their  country  and  with  the 
object  of  serving  as  the  channel  for  charitable  effort,  shall 
receive  from  the  belligerents,  for  themselves  and  their  duly 
accredited  agents,  every  facility  for  the  efficient  performance  of 
their  humane  task  within  the  bounds  imposed  by  military  exi- 
gencies and  administrative  regulations.  Representatives  of 
these  societies  when  furnished  with  a  personal  permit  by  the 
military  authorities,  may,  on  giving  an  undertaking  in  writing 
to  comply  with  all  measures  of  order  and  police  which  they  may 
have  to  issue,  be  admitted  to  the  places  of  internment  for  the 
purpose  of  distributing  relief,  as  also  to  the  halting  places  of 
repatriated  prisoners. 

ArticU  16 

Information  bureaux  enjoy  the  privilege  of  free  carriage. 
Letters,  money  orders,  and  valuables,  as  well  as  postal  parcels, 
intended  for  prisoners  of  war,  or  dispatched  by  them,  shall  be 
exempt  from  all  postal  charges  in  the  countries  of  origin  and 
destination,  as  well  as  in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  ad- 
mitted free  of  all  import  or  other  duties,  as  well  as  any  payment 
for  carriage  by  State  railways. 


THE  LAW  OF  WAR  187 

Article  17 

Officers  taken  prisoners  shall  receive  the  same  rate  of  pay  as 
officers  of  corresponding  rank  in  the  country  where  they  are 
detained;  the  amount  shall  be  refunded  by  their  own  Gov- 
ernment. 

Article  18 

Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exercise 
of  their  religion,  including  attendance  at  the  services  of  their 
own  Church,  on  the  sole  condition  that  they  comply  with  the 
police  regulations  issued  by  the  military  authorities. 

Article  19 

The  wills  of  prisoners  of  war  are  received  or  drawn  up  in  the 
same  way  as  for  soldiers  of  the  national  army. 

The  same  rules  shall  be  followed  as  regards  documents  con- 
cerning the  certification  of  the  death  and  also  as  to  the  burials 
of  prisoners  of  war,  due  regards  being  paid  to  their  grade  and 
rank. 

Article  20 

After  the  conclusion  of  peace,  the  repatriation  of  prisoners  of 
war  shall  be  carried  out  as  quickly  as  possible. 

Chapter  III—  The  Sick  and  Wounded 
Article  21 

The  obligations  of  belligerents  with  regard  to  the  sick  and 
wounded  are  governed  by  the  Geneva  Convention. 

Section  II  —  Of  Hostilities 

Chapter  I  —  Means  of  Injuring  the  Enemy,  Sieges,  and 
Bombardments 

Article  22 

Belligerents  do  not  possess  an  unlimited  right  as  to  the  choice 
of  means  of  injuring  the  enemy. 


188  DOCUMENTS  ON   INTERNATIONAL  LAW 

Article  23 

In  addition  to  the  prohibitions  provided  by  special  Conven- 
tions, it  is  particularly  forbidden : 

(a)  To  employ  poison  or  poisoned  weapons; 

(6)  To  kill  or  wound  by  treachery  individuals  belonging  to 
the  hostile  nation  or  army; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his 
arms,  or  no  longer  having  means  of  defence,  has  surrendered  at 
discretion ; 

{d)  To  declare  that  no  quarter  will  be  given; 

(e)  To  employ  arms,  projectiles,  or  material  calculated  to 
cause  unnecessary  suffering; 

(/)  To  make  improper  use  of  a  flag  of  truce,  of  the  national 
flag  or  of  the  military  insignia  and  uniform  of  the  enemy,  as  well 
as  of  the  distinctive  signs  of  the  Geneva  Convention; 

{g)  To  destroy  or  seize  enemy  property,  unless  such  destruc- 
tion or  seizure  be  imperatively  demanded  by  the  necessities 
of  war; 

{h)  To  declare  abolished,  suspended,  or  inadmissible  the 
right  of  the  subjects  of  the  hostile  party  to  instituted  legal 
proceedings. 

A  belligerent  is  likewise  forbidden  to  compel  the  subjects  of 
the  hostile  party  to  take  part  in  the  operations  of  war  directed 
against  their  own  country,  even  if  they  were  in  the  service  of 
the  belligerent  before  the  commencement  of  the  war. 

Article  24 

Ruses  of  war  and  the  employment  of  measures  necessary  for 
obtaining  information  about  the  enemy  and  the  country  are 
considered  permissible. 

Article  25 

The  attack  or  bombardment,  by  any  means  whatever,  of 
undefended  towns,  villages,  dwellings,  or  buildings  is  forbidden. 


THE  LAW  OF  WAR  189 

Article  26 

The  officer  in  command  of  an  attacking  force  must  do  all  in 
his  power  to  warn  the  authorities  before  commencing  a  bom- 
bardment, except  in  cases  of  assault. 

Article  27 

In  sieges  and  bombardments  all  necessary  steps  must  be  taken 
to  spare,  as  far  as  possible,  buildings  dedicated  to  public  wor- 
ship, art,  science,  or  charitable  purposes,  historic  monuments, 
hospitals,  and  places  where  the  sick  and  wounded  are  collected, 
provided  they  are  not  being  used  at  the  time  for  military 
purposes. 

It  is  the  duty  of  the  besieged  to  indicate  such  buildings  or 
places  by  distinctive  and  visible  signs,  which  shall  be  notified 
to  the  enemy  beforehand. 

Article  28 
The  giving  over  to  pillage  of  a  town  or  place,  even  when  taken 
by  assault,  is  forbidden. 

Chapter  II  —  Spies 

Article  29 

A  person  can  only  be  considered  a  spy  when,  acting  clandes- 
tinely or  on  false  pretences,  he  obtains  or  endeavours  to  obtain 
information  in  the  zone  of  operations  of  a  belligerent,  with  the 
intention  of  communicating  it  to  the  hostile  party. 

Accordingly,  soldiers  not  wearing  a  disguise  who  have  pene- 
trated into  the  zone  of  operations  of  the  hostile  army,  for  the 
purpose  of  obtaining  information,  are  not  considered  spies. 
Similarly,  the  following  are  not  considered  spies:  Soldiers  and 
civilians  entrusted  with  the  delivery  of  despatches  intended 
either  for  their  own  army  or  for  the  enemy's  army,  and  carrying 
out  their  mission  openly.  To  this  class  likewise  belong  persons 
sent  in  balloons  for  the  purpose  of  carrying  despatches  and, 
generally,  of  maintaining  communications  between  the  different 
parts  of  an  army  or  a  territory. 


190  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  SO 
A  spy  taken  in  the  act  shall  not  be  punished  without  pre- 
vious trial. 

Article  31 
A  spy  who,  after  rejoining  the  army  to  which  he  belongs,  is 
subsequently  captured  by  the  enemy,  is  treated  as  a  prisoner 
of  war,  and  incurs  no  responsibility  for  his  previous  acts  as 
a  spy. 

Chapter  III  —  Flags  of  Truce 

Article  32 

A  person  is  regarded  as  bearing  a  flag  of  truce  who  has  been 
authorized  by  one  of  the  belligerents  to  enter  into  communica- 
tion with  the  other,  and  who  presents  himself  under  a  white 
flag.  He  is  entitled  to  inviolability,  as  also  the  trumpeter,  bugler, 
or  drummer,  the  flag-bearer  and  the  interpreter  who  might 
accompany  him. 

Article  33 

The  commander  to  whom  a  flag  of  truce  is  sent  is  not  obliged 
in  every  case  to  receive  it. 

He  may  take  all  steps  necessary  in  order  to  prevent  the  envoy 
from  taking  advantage  of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  temporarily  to  detain  the 
envoy. 

Article  34 

The  envoy  loses  his  rights  of  inviolability  if  it  is  proved  in  a 
positive  and  incontestable  manner  that  he  has  taken  advantage 
of  his  privileged  position  to  provoke  or  commit  an  act  of 
treachery. 

Chapter  IV  —  Capitulations 

Article  36 
Capitulations  agreed  upon  between  the  contracting  parties 
must  take  into  account  the  rules  of  military  honour. 


THE  LAW  OF  WAR  191 

Once  settled,  they  must  be  scrupulously  observed  by  both 
parties. 

Chapter  V  —  Armistices 

Article  36 
An  armistice  suspends  military  operations  by  mutual  agree- 
ment between  the  belligerent  parties.  If  its  duration  is  not 
defined,  the  belligerent  parties  may  resume  operations  at  any 
time,  provided  always  that  the  enemy  is  warned  within  the  time 
agreed  upon,  in  accordance  with  the  terms  of  the  armistice. 

Article  S7 
An  armistice  may  be  general  or  local.    The  first  suspends  the 
entire  military  operations  of  the  belligerent  States;   the  second 
between  certain  portions  of  the  belligerent  armies  only  and 
within  a  fixed  zone. 

Article  38 

An  armistice  must  be  notified  officially  and  in  good  time  to 
the  competent  authorities  and  to  the  troops.  Hostilities  are 
suspended  immediately  after  the  notification,  or  at  the  time 
fixed. 

Article  39 

It  rests  with  the  contracting  parties  to  settle,  in  the  terms 
of  the  armistice,  the  relations  which  may  be  allowed  in  the 
theatre  of  war  with,  and  between,  the  civil  populations. 

Article  40 
Any  serious  violation  of  the  armistice  by  one  of  the  parties 
gives  the  other  party  the  right  of  denouncing  it,  and  even,  in 
cases  of  urgency,  of  recommencing  hostilities  immediately. 

Article  4^ 
A  violation  of  the  terms  of  the  armistice  by  individuals  acting 
on  their  own  initiative  only  entitles  the  injured  party  to  demand 
the  punishment  of  the  offenders  and,  if  there  is  occasion  for  it, 
compensation  for  the  losses  sustained. 


192  DOCUMENTS  ON  INTERNATIONAL  LAW 

Section  III— Military  Authority  over  the  Territory 
OF  THE  Hostile  State 

Article  42 

Territory  is  considered  occupied  when  actually  placed  under 
the  authority  of  the  hostile  army. 

The  occupation  extends  only  to  the  territory  where  such 
authority  has  been  established  and  is  in  a  position  to  assert 
itself. 

Article  43 

The  authority  of  the  power  of  the  State  having  passed  de 
facto  into  the  hands  of  the  occupant,  the  latter  shall  do  all  in 
his  power  to  restore,  and  ensure,  as  far  as  possible,  public  order 
and  safety,  respecting  at  the  same  time,  unless  absolutely  pre- 
vented, the  laws  in  force  in  the  country. 

Article  44 
A  belligerent  is  forbidden  to  compel  the  inhabitants  of  terri- 
tory occupied  by  it  to  furnish  information  about  the  army  of 
the  other  belligerent,  or  about  its  means  of  defence. 

Article  45 
It  is  forbidden  to  force  the  inhabitants  of  occupied  territory 
to  swear  allegiance  to  the  hostile  Power. 

Article  46 

Family  honour  and  rights,  individual  life,  and  private 
property,  as  well  as  religious  convictions  and  worship,  must  be 
respected. 

Private  property  may  not  be  confiscated. 

Article  4^ 
Pillage  is  expressly  for])idden. 

Article  48 
If,  in  the  territory  occupied,  the  occupant  collects  the  taxes, 
dues,  and  tolls  payable  to  the  State,  he  shall  do  so,  as  far  as  is 


THE  LAW  OF  WAR  193 

possible,  in  accordance  with  the  legal  basis  and  assessment  in 
force  at  the  time,  and  shall  in  consequence  be  bound  to  defray 
the  expenses  of  the  administration  of  the  occupied  territory  to 
the  same  extent  as  the  national  Government  had  been  so  bound. 

Article  49 
If,  in  addition  to  the  taxes  mentioned  in  the  above  Article, 
the  occupant  levies  other  money  contributions  in  the  occupied 
territory,  they  shall  only  be  applied  to  the  needs  of  the  army  or 
of  the  administration  of  the  territory  in  question. 

Article  50 
No  collective  penalty,  pecuniary  or  otherwise,  shall  be  in- 
flicted upon  the  population  on  account  of  the  acts  of  individuals 
for  which  it  cannot  be  regarded  as  collectively  responsible. 

Article  51 

No  contribution  shall  be  collected  except  under  a  written 
order,  and  on  the  responsibility  of  a  General  in  command. 

The  collection  of  the  said  contribution  shall  only  be  effected 
in  accordance,  as  far  as  is  possible,  with  the  legal  basis  and 
assessment  of  taxes  in  force  at  the  time. 

For  every  contribution  a  receipt  shall  be  given  to  the  con- 
tributories. 

Article  52 

Requisitions  in  kind  and  services  shall  not  be  demanded  from 
local  authorities  or  inhabitants  except  for  the  needs  of  the  army 
of  occupation.  They  shall  be  in  proportion  to  the  resources  ol 
the  country,  and  of  such  a  nature  as  not  to  involve  the  inhabi- 
tants in  the  obligation  of  taking  part  in  military  operations 
against  their  own  country. 

Such  requisitions  and  services  shall  only  be  demanded  on 
the  authority  of  the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall  as  far  as  possible  be  paid  for,  in 
ready  money;  if  not,  a  receipt  shall  be  given  and  the  payment 
of  the  amount  due  shall  be  made  as  soon  as  possible. 


194  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  53 

An  army  of  occupation  shiiU  only  take  possession  of  cash, 
funds,  and  realizable  securities  which  are  strictly  the  property 
of  the  State,  depots  of  arms,  means  of  transport,  stores  and 
supplies,  and,  generally,  all  movable  property  belonging  to  the 
State  which  may  be  used  for  military  operations. 

Except  in  cases  governed  by  naval  law,  all  appliances 
adapted  for  the  transmission  of  news,  or  for  the  transport  of 
persons  or  goods,  whether  on  land,  at  sea,  or  in  the  air,  depots 
of  arms,  and,  in  general,  all  kinds  of  war  material  may  be 
seized,  even  if  they  belong  to  private  individuals,  but  they  must 
be  restored  at  the  conclusion  of  peace,  and  indemnities  must 
be  paid  for  them. 

Article  54 
Submarine  cables  connecting  an  occupied  territory  with  a 
neutral  territory  shall  not  be  seized  or  destroyed  except  in  the 
case  of  absolute  necessity.     They  also  must  be  restored  at  the 
conclusion  of  peace,  and  indemnities  paid  for  them. 

Article  55 

The  occupying  State  shall  be  regarded  only  as  administrator 
and  usufructuary  of  public  buildings,  landed  property,  forests, 
and  agricultural  undertakings  belonging  to  the  hostile  State,  and 
situated  in  the  occupied  country.  It  must  safeguard  the  capi- 
tal of  such  properties,  and  administer  them  in  accordance  with 
the  rules  of  usufruct. 

Article  56 

The  property  of  local  authorities,  as  well  as  that  of  institu- 
tions dedicated  to  public  worship,  charity,  education,  and  to 
science  and  art,  even  when  State  property,  shall  be  treated  as 
private  property. 

Any  seizure  or  destruction  of,  or  wilful  damage  to,  institu- 
tions of  this  character,  historic  monuments  and  works  of  science 
and  art,  is  forbidden,  and  should  be  made  the  subject  of  legal 
proceedings. 


THE   LAW  OF  WAR  195 

Note.  —  The  foregoing  Regulations  are  not  part  of  the  Hague  Conven- 
tion of  1907  on  The  Laws  and  Customs  of  War  on  Land.  They  are  instead 
an  Annex  to  the  Convention;  and  their  exact  position  is  defined  in  the 
preamble  of  it,  which  speaks  of  them  as  "intended  to  serve  as  general 
rules  of  conduct  for  belhgerents  in  their  relations  with  each  other  and  with 
populations."  But  the  generaUty  of  the  rules,  and  the  fact  that  states 
have  not  pledged  themselves  to  their  exact  wording  must  not  be  taken  to 
miply  that  they  are  mere  pious  opinions  which  commanders  in  the  field 
may  carry  into  effect  or  not  according  to  their  own  reading  of  the  mihtary 
exigencies  of  the  moment.  The  assertion  in  Article  2  of  the  Convention 
that  the  Regulations  ' '  are  only  binding  between  the  Contracting  Powers, 
and  only  if  all  the  belhgerents  are  parties  to  the  Convention"  carries  with 
it  the  imphcation  that  except  in  abnormal  circumstances  they  are 
binding.  And  this  view  is  confirmed  by  Article  3,  which  imposes  on  "a 
belhgerent  party  which  violates  the  provisions  of  the  said  Regulations" 
a  habihty  to  pay  compensation,  and  further  declares  that  "it  shall  be 
responsible  for  all  acts  committed  by  persons  forming  part  of  its  armed 
forces."  Accordingly  we  find  that  most  of  the  leading  countries  of  the 
civiHsed  world  have  issued  codes  of  Regulations  for  their  armies  in  time  of 
war;  and  these  not  only  conform  to  the  principles  of  the  Hague  Regletnent 
but  reproduce  in  most  cases  its  words.  Some  of  them  deal  with  matters 
on  which  the  Hague  Conference  was  unable  to  come  to  an  agreement,  such 
as  the  treatment  of  populations  who  in  occupied  territory  rise  against  the 
occupying  army.  These  and  similar  cases  are,  according  to  the  preamble 
of  the  Convention,  not  to  be  "  left  to  the  arbitrary  judgment  of  the  mihtary 
Commanders,"  but  to  be  regulated  by  "the  usages  estabhshed  between 
civiUsed  nations,"  "the  laws  of  humanity,"  and  "the  requirements  of  the 
pubUc  conscience."  Moreover  the  provisions  of  the  Reglement  are  spoken 
of  as  "inspired  by  the  desire  to  diminish  the  evils  of  war,  as  far  as  military 
necessities  will  permit,"  thus  shewing  that  the  hard  exigencies  of  actual 
warfare  have  been  taken  into  account  in  framing  the  rules,  and  therefore 
cannot  be  used  to  justify  disregard  of  them. 


5.  The  Geneva  Convention,  1906 
Chapter  I  —  The  Wounded  and  Sick 

Article  1 

Soldiers,  and  other  persons  officially  attached  to  armies, 
shall  be  respected  and  taken  care  of  when  wounded  or  sick, 
by  the  belligerent  in  whose  power  they  may  be,  without  dis- 
tinction of  nationality. 


196  DOCUMENTS  ON  INTERNATIONAL  LAW 

Nevertheless,  a  belligerent  who  is  compelled  to  abandon  sick 
or  wounded  to  the  enemy  shall,  as  far  as  military  exigencies 
permit,  leave  with  them  a  portion  of  his  medical  personnel  and 
material  to  contribute  to  the  care  of  them. 

Article  2 

Except  as  regards  the  treatment  to  be  provided  for  them  in 
virtue  of  the  preceding  Article,  the  wounded  and  sick  of  an 
army  who  fall  into  the  hands  of  the  enemy  are  prisoners  of  war, 
and  the  general  provisions  of  international  law  concerning 
prisoners  are  applicable  to  them. 

Belligerents  are,  however,  free  to  arrange  with  one  another 
such  exceptions  and  mitigations  with  reference  to  sick  and 
wounded  prisoners  as  they  may  judge  expedient;  in  particular 
they  will  be  at  liberty  to  agree  — 

To  restore  to  one  another  the  wounded  left  on  the  field  after 
a  battle; 

To  repatriate  any  wounded  and  sick  whom  they  do  not  wish 
to  retain  as  prisoners,  after  rendering  them  fit  for  removal  or 
after  recovery; 

To  hand  over  to  a  neutral  State,  with  the  latter's  consent, 
the  enemy's  wounded  and  sick  to  be  interned  by  the  neutral 
State  until  the  end  of  hostilities. 

Article  3 

After  each  engagement  the  Commander  in  possession  of  the 
field  shall  take  measures  to  search  for  the  wounded,  and  to 
insure  protection  against  pillage  and  maltreatment  both  for 
the  wounded  and  for  the  dead. 

He  shall  arrange  that  a  careful  examination  of  the  bodies  is 
made  before  the  dead  are  buried  or  cremated. 

Article  4 
Each  belligerent  shall  send  as  soon  as  possible  to  the  authori- 
ties of  the  country  or  army  to  which  they  belong  the  military 
identification  marks  or  tokens  found  on  the  dead,  and  a  nominal 
roll  of  the  wounded  or  sick  who  have  been  collected  by  him. 


THE  LAW  OF  WAR  197 

The  belligerents  shall  keep  each  other  mutually  informed  of 
any  internments  and  changes,  as  well  as  of  admissions  into 
hospital  and  deaths  among  the  wounded  and  sick  in  their  hands. 
They  shall  collect  all  the  articles  of  personal  use,  valuables, 
letters,  &c.,  which  are  found  on  the  field  of  battle  or  left  by  the 
wounded  or  sick  who  have  died  in  the  medical  establishments  or 
units,  in  order  that  such  objects  may  be  transmitted  to  the 
persons  interested  by  the  authorities  of  their  own  country. 

Article  6 
The  military  authority  may  appeal  to  the  charitable  zeal  of 
the  inhabitants  to  collect  and  take  care  of,  under  his  direction, 
the  wounded  or  sick  of  armies,  granting  to  those  who  have 
responded  to  this  appeal  special  protection  and  certain  immu- 
nities. 

Chapter  II  —  Medical  Units  and  Establishments 

Article  6 
Mobile  medical  units  (that  is  to  say,  those  which  are  intended 
to  accompany  armies  into  the  field)  and  the  fixed  establishments 
of  the  medical  service  shall  be  respected  and  protected  by  the 
belUgerents. 

Article  7 

The  protection  to  which  medical  units  and  establishments 
are  entitled  ceases  if  they  are  made  use  of  to  commit  acts  harm- 
ful to  the  enemy. 

Article  8 

The  following  facts  are  not  considered  to  be  of  a  nature  to 
deprive  a  medical  unit  or  establishment  of  the  protection  guar- 
anteed by  Article  6:  — 

1.  That  the  personnel  of  the  unit  or  of  the  estabHshment  is 
armed,  and  that  it  uses  its  arms  for  its  own  defence  or  for  that 
of  the  sick  and  wounded  under  its  charge. 

2.  That  in  default  of  armed  orderlies  the  unit  or  establish- 
ment is  guarded  by  a  piquet  or  by  sentinels  furnished  with  an 
authority  in  due  form. 


198  DOCUMENTS  ON   INTERNATIONAL  LAW 

3.  That  weapons  aiitl  cartridges  taken  from  the  wounded 
and  not  yet  handed  ov(>r  to  the  proper  department  are  found 
in  the  unit  or  estabUshment. 


Chapter  III  —  Personnel 

Article  9 

The  personnel  engaged  exchisively  in  the  collection,  trans- 
port, and  treatment  of  the  wounded  and  the  sick,  as  well  as  in 
the  administration  of  medical  units  and  estabhshments,  and  the 
Chaplains  attached  to  armies,  shall  be  respected  and  protected 
under  all  circumstances.  If  they  fall  into  the  hands  of  the 
enemy  they  shall  not  be  treated  as  prisoners  of  war. 

These  provisions  apply  to  the  guard  of  medical  units 
and  estabhshments  under  the  circumstances  indicated  in 
Article  8  (2). 

Article  10 

The  personnel  of  Voluntary  Aid  Societies,  duly  recognized 
and  authorized  by  their  Government,  who  may  l)c  employed 
in  the  medical  units  and  estabhshments  of  armies,  is  placed  on 
the  same  footing  as  the  personnel  referred  to  in  the  preceding 
Article,  provided  always  that  the  first-mentioned  personnel 
shall  be  subject  to  miUtary  law  and  regulations. 

Each  State  shall  notify  to  the  other,  either  in  time  of  peace 
or  at  the  commencement  of  or  during  the  course  of  hostihties, 
but  in  every  case  before  actually  employing  them,  the  names  of 
the  Societies  which  it  has  authorized,  under  its  responsibihty, 
to  render  assistance  to  the  regular  medical  service  of  its  armies. 

Article  11 

A  recognized  Society  of  a  neutral  country  can  only  afford  the 
assistance  of  its  medical  personnel  and  units  to  a  belhgerent 
with  the  previous  consent  of  its  own  Government  and  the 
authorization  of  the  belligerent  concerned. 

A  belligerent  who  accepts  such  assistance  is  bound  before 
making  any  use  of  it  to  notify  the  fact  to  his  adversary. 


THE  LAW  OF  WAR  199 

Article  12 

The  persons  designated  in  Articles  9,  10,  and  11,  after  they 
have  fallen  into  the  hands  of  the  enemy,  shall  continue  to 
carry  on  their  duties  under  his  direction. 

When  their  assistance  is  no  longer  indispensable,  they  shall 
be  sent  back  to  their  army  or  to  their  country  at  such  time 
and  by  such  route  as  may  be  compatible  with  military  exigencies. 

They  shall  then  take  with  them  such  effects,  instruments, 
arms  and  horses  as  are  their  private  property. 

Article  13 
The  enemy  shall  secure  to  the  persons  mentioned  in  Article 
9,  while  in  his  hands,  the  same  allowances  and  the  same  pay  as 
are  granted  to  the  persons  holding  the  same  rank  in  his  own 
army. 

Chapter  IV  —  Material 

Article  14 

If  mobile  medical  units  fall  into  the  hands  of  the  enemy  they 
shall  retain  their  material,  including  their  teams,  whatever 
may  be  the  means  of  transport  and  whoever  may  be  the  drivers 
employed. 

Nevertheless,  the  competent  miUtary  authority  shall  be  free 
to  use  the  material  for  the  treatment  of  the  wounded  and  sick. 
It  shall  be  restored  under  the  conditions  laid  down  for  the 
medical  personnel,  and  so  far  as  possible  at  the  same  time. 

Article  15 

The  buildings  and  material  of  fixed  establishments  remain 
subject  to  the  laws  of  war,  but  may  not  be  diverted  from 
their  purpose  so  long  as  they  are  necessary  for  the  wounded  and 
the  sick. 

Nevertheless,  the  Commanders  of  troops  in  the  field  may 
dispose  of  them,  in  case  of  urgent  military  necessity,  provided 
they  make  previous  arrangements  for  the  welfare  of  the  sick 
and  wounded  who  are  found  there. 


200  DOCUMENTS   ON   INTERNATIONAL  LAW 

Article  16 
The  luaterial  of  Voluntary  Aid  Societies  which  are  admitted 
to  the  privileges  of  the  Convention  under  the  conditions  laid 
down  therein  is  considered  privat(>  property,  and,  as  such,  to 
be  respected  under  all  circumstances,  saving  only  the  right  of 
requisition  recognized  for  belligerents  in  accordance  with  the 
laws  and  customs  of  war. 

Chapter  V  —  Convoys  of  Evacuation 
Article  17 
Convoys  of  evacuation  shall  be  treated  like  mobile  medical 
units,  subject  to  the  following  special  provisions:  — 

1.  A  beUigerent  intercepting  a  convoy  may,  if  military  exi- 
gencies demand,  break  it  up,  provided  he  takes  charge  of  the 
sick  and  wounded  who  are  in  it. 

2.  In  this  case,  the  obligation  to  send  back  the  medical 
personnel,  provided  for  in  Article  12,  shall  be  extended  to  the 
whole  of  the  mihtary  personnel  detailed  for  the  transport  or 
the  protection  of  the  convoy  and  furnished  with  an  authority 
in  due  form  to  that  effect. 

The  obUgation  to  restore  the  medical  material,  provided  for 
in  Article  14,  shall  apply  to  railway  trains,  and  boats  used  in 
internal  navigation,  which  are  specially  arranged  for  evacua- 
tions, as  well  as  to  the  material  belonging  to  the  medical  service 
for  fitting  up  ordinary  vehicles,  trains,  and  boats. 

Military  vehicles,  other  than  those  of  the  medical  service, 
may  be  captured  with  their  teams. 

The  civiUan  jiersonnel  and  the  various  means  of  transport 
obtained  by  requisition,  including  railway  material  and  boats 
used  for  convoys,  shall  be  subject  to  the  general  rules  of  inter- 
national law. 

Chapter  VI  —  The  Distinctive  Emblem 
Article  18 
As  a  compliment  to  Switzerland,  the  heraldic  device  of  the 
red  cross  on  a  white  ground,  formed  by  reversing  the  Federal 


THE  LAW  OF  WAR  201 

colours,  is  retained  as  the  emblem  and  distinctive  sign  of  the 
medical  service  of  armies. 

Article  19 

With  the  permission  of  the  competent  military  authority  this 
emblem  shall  be  shown  on  the  flags  and  armlets  (brassards), 
as  well  as  on  all  the  material  belonging  to  the  medical  service. 

Article  20 

The  personnel  protected  in  pursuance  of  Articles  9  (para- 
graph 1),  10,  and  11  shall  wear,  fixed  to  the  left  arm,  an  armlet 
(brassard)  with  a  red  cross  on  a  white  ground,  dehvered  and 
stamped  by  the  competent  military  authority,  and  accompanied 
by  a  certificate  of  identity  in  the  case  of  persons  who  are  attached 
to  the  medical  service  of  armies,  but  who  have  not  a  military 
uniform. 

Article  21 

The  distinctive  flag  of  the  Convention  shall  only  be  hoisted 
over  those  medical  units  and  establishments  which  are  entitled 
to  be  respected  under  the  Convention,  and  with  the  consent 
of  the  military  authorities.  It  must  be  accompanied  by  the 
national  flag  of  the  beUigerent  to  whom  the  unit  or  establish- 
ment belongs. 

Nevertheless,  medical  units  which  have  fallen  into  the  hands 
of  the  enemy,  so  long  as  they  are  in  that  situation,  shall  not  fly 
any  other  flag  than  that  of  the  Red  Cross. 

Article  22 

The  medical  units  belonging  to  neutral  countries  which  may 
be  authorized  to  afford  their  services  under  the  conditions  laid 
down  in  Article  11  shall  fly,  along  with  the  flag  of  the  Conven- 
tion, the  national  flag  of  the  belligerent  to  whose  army  they  are 
attached. 

The  provisions  of  the  second  paragraph  of  the  preceding 
Article  are  applicable  to  them. 


202  DOCUMENTS  ON   INTERNATIONAL  LAW 

Article  23 
The  emblem  of  the  red  cross  on  a  white  ground  and  the  words 
"Red  Cross"  or  "Geneva  Cross"  shall  not  be  used,  either  in 
time  of  peace  or  in  time  of  war,  ex('(>pt  to  protect  or  to  indicate 
the  medical  units  and  establishments  and  the  personnel  and 
material  protected  by  the  Convention. 

Chapter  VII  —  Application  and  Carrying  out  of  the 
Convention. 

Article  24 
The  provisions  of  the  present  Convention  are  only  binding 
upon  the  Contracting  Powers  in  the  case  of  war  between  two 
or  more  of  them.  These  provisions  shall  cease  to  be  binding 
from  th(>  moment  when  one  of  the  beUigerent  Powers  is  not  a 
party  to  the  ('onvention. 

Article  25 
The  Commanders-in-chief  of  belligerent  armies  shall  arrange 
the  details  for  carrying  out  the  preceding  Articles,  as  well  as 
for  cases  not  provided  for,  in  accordance  with  the  instructions 
of  their  respf^tive  Governments  and  in  conformity  with  the 
general  principles  of  the  present  Convention. 

Article  26 
The  Signatory  Governments  will  take  the  necessary  measures 
to  instruct  their  troops,  especially  the  personnel  protected,  in 
the  provisions  of  the  pres(^nt  Convention,  and  to  bring  them  to 
the  notice  of  the  civil  population. 

Chapter  VIII  —  Prevention  of  Abuses  and  Infractions 

Article  27 
The  Signatory  Governments,  in  countries  the  legislation  of 
which  is  not  at  present  adequate  for  the  purpose,  undertake  to 
adopt  or  to  propose  to  their  legislative  bodies  such  measures  as 


THE  LAW  OF  WAR  203 

may  be  necessary  to  prevent  at  all  times  the  employment  of 
the  emblem  or  the  name  of  Red  Cross  or  Geneva  Cross  by 
private  individuals  or  by  Societies  other  than  those  which  are 
entitled  to  do  so  imder  the  present  Convention,  and  in  particular 
for  commercial  purposes  as  a  trade-mark  or  trachng  mark. 

The  prohibition  of  the  employment  of  the  emblem  or  the 
names  in  question  shall  come  into  operation  from  the  date 
fixed  by  each  legislature,  and  at  the  latest  five  years  after  the 
present  Convention  comes  into  force.  From  that  date  it  shall 
no  longer  be  lawful  to  adopt  a  trade-mark  or  trading  mark  con- 
trary to  this  prohibition. 

Article  28 

The  Signatory  Governments  also  imdertake  to  adopt,  or  to 
propose  to  their  legislative  bodies,  should  their  miUtary  law  be 
insufficient  for  the  purpose,  the  measures  necessary  for  the 
repression  in  time  of  war  of  individual  acts  of  pillage  and  mal- 
treatment of  the  wounded  and  sick  of  armies,  as  well  as  for  the 
punishment,  as  an  unlawful  employment  of  military  insignia, 
of  the  improper  use  of  the  Red  Cross  flag  and  armlet  (brassard) 
by  officers  and  soldiers  or  private  individuals  not  protected  by 
the  present  Convention. 

They  shall  communicate  to  one  another,  through  the  Swiss 
Federal  Council,  the  provisions  relative  to  these  measures  of 
repression  at  the  latest  within  five  years  from  the  ratification 
of  the  present  Convention. 

General  Provisions 

Article  29 

The  present  Convention  shall  be  ratified  as  soon  as  possible. 
The  ratifications  shall  be  deposited  at  Berne. 

When  each  ratification  is  deposited  a  proces-verhal  shall  be 
drawn  up,  and  a  copy  thereof  certified  as  correct  shall  be  for- 
warded through  the  diplomatic  channel  to  all  the  Contracting 
Powers. 


204  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  30 
The  present  Convention  shall  come  into  force  for  each  Power 
six  months  after  the  date  of  the  deposit  of  its  ratification. 

Article  31 
The  present  Convention,  duly  ratified,  shall  replace  the 
Convention  of  the  22nd  August,  1864,  in  relations  between  the 
Contracting  States.  The  Convention  of  1864  remains  in  force 
between  such  of  the  parties  who  signed  it  who  may  not  hkewise 
ratify  the  present  Convention. 

Article  32 

The  present  Convention  may  l)e  signed  until  the  31st  Decem- 
ber next  by  the  Powers  represented  at  the  Conference  which 
was  opened  at  Geneva  on  the  11th  June,  1906,  as  also  by  the 
Powers,  not  represented  at  that  Conference,  which  signed  the 
Convention  of  1864. 

Such  of  the  aforesaid  Powers  as  shall  not  have  signed  the 
present  Convention  by  the  31st  December,  1906,  shall  remain 
free  to  accede  to  it  su])sequently.  They  shall  notify  their 
accession  by  means  of  a  written  communication  addressed  to 
the  Swiss  Federal  Council,  and  communicated  by  the  latter  to 
all  the  Contracting  Powers. 

Other  Powers  may  apply  to  accede  in  the  same  manner,  but 
their  request  shall  only  take  effect  if  witliin  a  period  of  one  year 
from  the  notification  of  it  to  the  Federal  Council  no  objection 
to  it  reaches  the  Council  from  any  of  the  Contracting  Powers. 

Article  33 

Each  of  the  Contracting  Powers  shall  be  at  liberty  to  denounce 
the  present  Convention.  The  denunciation  shall  not  take  effect 
until  one  year  after  the  written  notification  of  it  has  reached  the 
Swiss  Federal  Council.  The  Council  shall  immediately  com- 
municate the  notification  to  all  the  other  Contracting  Parties. 

The  denunciation  shall  only  affect  the  Power  which  has 
notified  it. 


THE  LAW  OF  WAR  205 

In  faith  whereof  the  Plenipotentiaries  have  signed  the  present 
Convention  and  have  affixed  thereto  their  seals. 

Done  at  Geneva  the  6th  July,  1906,  in  a  single  copy,  which 
shall  1)6  deposited  in  the  archives  of  the  Swiss  Confederation, 
and  of  which  copies  certified  as  correct  shall  be  forwarded  to 
the  Contracting  Powers  through  the  diplomatic  channel. 

Note.  —  This  Convention  was  preceded  by  a  much  shorter  and  less 
elaborate  one  in  1864.  The  experience  gained  in  several  great  wars  con- 
vinced the  leading  powers  that  changes  and  additions  were  necessary. 
A  conference  of  representatives  from  thirty-five  states  met  at  Geneva  in 
1906,  and  the  result  of  their  deUberations  is  the  foregoing  Convention, 
which  has  been  ratified  by  a  majority  of  the  powers  who  negotiated  it. 
Those  states  who  were  parties  to  the  original  Convention  of  1864  and  have 
not  accepted  that  of  1906,  are  still  bound  by  the  former  in  their  wars  with 
one  another. 

6.   The  Hague  Convention  of  1907  for  the  Adaptation  of  the  Prin- 
ciples of  the  Geneva  Convention  to  Maritime  War 

Article  1 

MiUtary  hospital-ships,  that  is  to  say,  ships  constructed  or 
adapted  by  States  for  the  particular  and  sole  purpose  of  aiding 
the  sick,  wounded,  and  shipwrecked,  the  names  of  which  have 
been  communicated  to  the  belligerent  Powers  at  the  commence- 
ment or  during  the  course  of  hostihties,  and  in  any  case  before 
they  are  employed,  shall  be  respected,  and  may  not  be  captured 
while  hostilities  last. 

Such  ships,  moreover,  are  not  on  the  same  footing  as  war- 
ships as  regards  their  stay  in  a  neutral  port. 

Article  2 
Hospital-ships,  equipped  wholly  or  in  part  at  the  expense  of 
private  individuals  or  officially  recognized  rehef  societies,  shall 
likewise  be  respected  and  exempt  from  capture,  if  the  belUgerent 
Power  to  which  they  belong  has  given  them  an  official  com- 
mission and  has  notified  their  names  to  the  hostile  Power  at 
the  commencement  of  or  during  hostihties,  and  in  any  case 
before  they  are  employed. 


206  DOCUMENTS  ON  INTERNATIONAL  LAW 

Such  ships  must  be  provided  with  a  certificate  from  the 
proper  autfiorities  dechu'ing  tliat  the  vessels  have  been  under 
their  control  while  fitting  out  and  on  final  departure. 

Article  3 
Hospital-ships,  equipped  wholly  or  in  part  at  the  expense  of 
private  individuals  or  officially  recognized  societies  of  neutral 
countries,  shall  be  respected  and  exempt  from  capture;,  on  con- 
dition that  they  are  placed  under  the  orders  of  one  of  the  bellig- 
erents, with  the  previous  consent  of  their  own  Government  and 
with  the  authorization  of  the  belligerent  himself,  and  on  condi- 
tion also  that  the  latter  has  notified  their  name  to  his  adversary 
at  the  commencement  of  or  during  hostihties,  and  in  any  case, 
before  they  are  employed. 

Article  4 

The  ships  mentioned  in  Articles  1,  2,  and  3  shall  afford  relief 
and  assistance  to  the  wounded,  sick,  and  shipwrecked  of  the 
belUgerents  without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any 
military  purpose. 

Such  vessels  must  in  no  wise  hamper  the  movements  of  the 
combatants. 

During  and  after  an  engagement  they  will  act  at  their  own 
risk  and  peril. 

The  belligerents  shall  have  the  right  to  control  and  search 
them;  they  may  refuse  to  help  them,  order  them  off,  make  them 
take  a  certain  course,  and  put  a  Commissioner  on  board;  they 
may  even  detain  them,  if  the  situation  is  such  as  to  require  it. 

The  belhgerents  shall,  as  far  as  possible,  enter  in  the  log  of 
the  hospital-ships  the  orders  which  they  give  them. 

Article  5 

Military  hospital-ships  shall  be  distinguished  by  being  painted 
white  outside,  with  a  horizontal  band  of  green  about  a  metre 
and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished 


THE  LAW  OF  WAR  207 

by  being  painted  white  outside  with  a  horizontal  band  of  red 
about  a  metre  and  a-half  in  breadth. 

The  boats  of  the  said  ships,  as  also  small  craft  which  may 
be  used  for  hospital  work,  shall  be  distinguished  by  similar 
painting. 

All  hospital-ships  shall  make  themselves  known  by  hoisting, 
with  their  national  flag,  the  white  flag  with  a  red  cross  provided 
by  the  Geneva  Convention,  and  further,  if  they  belong  to  a 
neutral  State,  by  flying  at  the  mainmast  the  national  flag  of 
the  belligerent  under  whose  orders  they  are  placed. 

Hospital-ships  which  are  detained  under  Article  4  by  the 
enemy  must  haul  down  the  national  flag  of  the  belhgerent  to 
whom  they  belong. 

The  ships  and  boats  above  mentioned  which  wish  to  ensure 
by  night  the  freedom  from  interference  to  which  they  are  en- 
titled, must,  subject  to  the  assent  of  the  belligerent  they  are 
accompanying,  take  the  necessary  measures  to  render  their 
special  painting  sufficiently  plain. 

Article  6 

The  distinguishing  signs  referred  to  in  Article  5  shall  only 
be  used,  whether  in  peace  or  war,  for  protecting  or  indicating 
the  ships  therein  mentioned. 

Article  7 

In  the  case  of  a  fight  on  board  a  warship,  the  sick-bays  shall 
be  respected  and  spared  as  far  as  possible. 

The  said  sick-bays  and  the  materiel  belonging  to  them  remain 
subject  to  the  laws  of  war;  they  cannot,  however,  be  used  for 
any  purpose  other  than  that  for  which  they  were  originally 
intended,  so  long  as  they  are  required  for  the  sick  and 
wounded. 

The  commander  into  whose  power  they  have  fallen  may, 
however,  if  the  military  situation  requires  it,  apply  them  to 
other  purposes,  after  seeing  that  the  sick  and  wounded  on  board 
are  properly  provided  for. 


208  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  8 

Hospital-ships  and  sick-bays  of  vessels  arc  no  longer  entitled 
to  protection  if  they  are  employed  for  the  purpose  of  injuring 
the  enemy. 

The  fact  of  the  staff  of  the  said  ships  and  sick-bays  being 
armed  for  maintaining  order  and  for  def(>nding  the  sick  and 
wounded,  and  the  presence  of  wireless  telegraphy  apparatus  on 
board,  are  not  sufficient  reasons  for  withdrawing  protection. 

Article  9 

Belligerents  may  appeal  to  the  charity  of  the  commanders  of 
neutral  merchant-ships,  yachts,  or  boats  to  take  the  sick  and 
wounded  on  board  and  tend  them. 

Vessels  responding  to  this  appeal,  and  also  vessels  which  may 
have  of  their  own  accord  rescued  sick,  wounded,  or  shipwrecked 
men,  shall  enjoy  special  protection  and  certain  immimities. 
In  no  case  may  they  be  captured  for  the  sole  reason  of  having 
such  persons  on  board;  but,  subject  to  any  undertaking  that 
may  have  been  given  to  them,  they  remain  liable  to  capture  for 
any  violations  of  neutrality  they  may  have  committed. 

Article  10 

The  rehgious,  medical,  and  hospital  staff  of  any  captured 
ship  is  inviolable,  and  its  members  may  not  be  made  prisoners 
of  war.  On  leaving  the  ship  they  are  entitled  to  remove  their 
own  private  belongings  and  surgical  instruments. 

They  shall  continue  to  discharge  their  duties  so  far  as  neces- 
sary, and  can  afterwards  leave,  when  the  Commander-in-chief 
considers  it  permissi])le. 

Belligerents  must  guarantee  to  the  said  staff,  while  in  their 
hands,  the  same  allowances  and  pay  as  are  given  to  the  staff  of 
corresponding  rank  in  their  own  navy. 

Article  11 
Sick  or  wounded  sailors,  soldiers  on  board,  or  other  persons 
officially  attached  to  fleets  or  armies,  whatever  their  nationality, 
shall  be  respected  and  tended  l)y  the  captors. 


THE  LAW  OF  WAR  209 

Article  12 
Any  war-ship  belonging  to  a  belligerent  may  demand  the  sur- 
render of  sick,  wounded,  or  shipwrecked  men  on  board  mihtary 
hospital-ships,  hospital-ships  belonging  to  reUef  societies  or 
to  private  individuals,  merchant-ships,  yachts,  or  boats,  what- 
ever the  nationaUty  of  such  vessels. 

Article  13 
If  sick,  wounded,  or  shipwrecked  persons  are  taken  on  board 
a  neutral  war-ship,  precaution  must  be  taken,  so  far  as  possible, 
that  they  do  not  again  take  part  in  the  operations  of  the  war. 

Article  14 

The  sick,  wounded,  or  shipwrecked  of  one  of  the  belUgerents 
who  fall  into  the  power  of  the  other  belUgerent  are  prisoners  of 
war.  The  captor  must  decide,  according  to  circumstances, 
whether  to  keep  them,  send  them  to  a  port  of  his  own  country, 
to  a  neutral  port,  or  even  to  an  enemy  port.  In  this  last  case, 
prisoners  thus  repatriated  may  not  serve  again  while  the  war 
lasts. 

Article  15 

The  sick,  wounded,  or  shipwrecked,  who  are  landed  at  a 
neutral  port  with  the  consent  of  the  local  authorities,  must,  in 
default  of  arrangement  to  the  contrary  between  the  neutral 
State  and  the  belUgerent  States,  be  guarded  by  the  neutral 
State  so  as  to  prevent  them  from  again  taking  part  in  the  opera- 
tions of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them 
shall  be  borne  by  the  State  to  which  the  shipwrecked,  sick,  or 
wounded  persons  belong. 

Article  16 
After  every  engagement,  the  two  belligerents  shall,  so  far 
as  mihtary  interests  permit,  take  steps  to  look  for  the  sick, 
wounded,  and  shipwrecked,  and  to  protect  them,  as  well  as  the 
dead,  against  pillage  and  improper  treatment. 


210  DOCUMENTS  ON  INTERNATIONAL  LAW 

They  shall  see  that  the  burial,  whether  by  lantl  or  sea,  or 
cremation  of  the  dead,  shall  be  preceded  by  a  careful  examina- 
tion of  the  corpse. 

Article  17 

Each  belUgerent  shall  send,  as  early  as  possible,  the  miUtary 
marks  or  documents  of  identity  found  on  the  dead  and  a  list 
of  the  names  of  the  sick  and  wounded  picked  up  by  him  to  the 
autliorities  of  their  comitry,  navy,  or  army. 

The  belhgerents  shall  keep  each  other  informed  as  to  intern- 
ments and  transfers  as  well  as  to  the  admissions  into  hospital 
and  deaths  which  have  occurred  among  th(,'  sick  and  wounded 
in  their  hands.  The^y  shall  collect  all  the  objects  of  personal 
use,  valuables,  letters,  &c.,  which  may  be  found  in  the  captured 
ships,  or  which  may  have  been  left  by  the  sick  or  wounded  who 
died  in  hospital,  in  order  to  have  them  forwarded  to  the  persons 
concerned  by  the  authorities  of  their  own  country. 

Article  18 

The  provisions  of  the  present  Convention  do  not  apply  except 
between  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Article  19 

The  Commanders-in-chief  of  the  belligerent  fleets  shall  give 
detailed  directions  for  carrying  out  the  preceding  Articles  and 
for  meeting  cases  not  therein  provided  for,  in  accordance  with 
the  instructions  of  their  resp(H'tive  Governments  and  in  con- 
formity with  the  general  principles  of  the  j^resent  Convention. 

Ariicle  20 

The  Signatory  Powers  shall  take  the  necessary  steps  in  order 
to  bring  the  provisions  of  the  present  Convention  to  the  knowl- 
edge of  their  naval  forces,  and  especially  of  the  members  entitled 
thereunder  to  inmiuiiit}',  and  to  make  them  known  to  the 
public. 


THE  LAW  OF  WAR  211 

Article  21 

The  Signatory  Powers  likewise  undertake  to  enact  or  to  pro- 
pose to  their  Legislatures,  if  their  criminal  laws  are  inadequate, 
the  measures  necessary  for  checking  in  time  of  war  individual 
acts  of  pillage  and  ill-treatment  in  respect  to  the  sick  and 
wounded  in  the  fleet,  as  well  as  for  punishing,  as  an  unjustifi- 
able adoption  of  naval  or  military  marks,  the  unauthorized  use 
of  the  distinctive  marks  mentioned  in  Article  5  by  vessels  not 
protected  by  the  present  Convention. 

They  shall  communicate  to  each  other,  through  the  Nether- 
land  Government,  the  enactments  for  preventing  such  acts  at 
the  latest  within  five  years  of  the  ratification  of  the  present 
Convention. 

Article  22 

In  the  case  of  operations  of  war  between  the  land  and  sea 
forces  of  belligerents,  the  provisions  of  the  present  Convention 
are  only  apphcable  to  the  forces  on  board  ship. 

Article  23 

The  present  Convention  shall  be  ratified  as  soon  as 
possible. 

The  ratifications  shall  be  deposited  at  the  Hague. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  Proto- 
col signed  by  the  Representatives  of  the  Powers  which  take 
part  therein  and  by  the  Netherland  Minister  for  Foreign  affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by 
means  of  a  written  notification,  addressed  to  the  Netherland 
Government  and  accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  Protocol  relating  to  the  first 
deposit  of  ratifications,  of  the  notifications  mentioned  in  the 
preceding  paragraph,  as  well  as  of  the  instruments  of  ratifica- 
tion, shall  be  immediately  sent  by  the  Netherland  Government 
through  the  diplomatic  channel  to  the  Powers  invited  to  the 
Second  Peace  Conference,  as  well  as  to  the  other  Powers  which 
have  acceded  to  the  Convention.  The  said  Government  shall, 
in  the  cases  contemplated  in  the  preceding  paragraph,  inform 


212  DOCUMENTS  ON  INTERNATIONAL  LAW 

them  at  the  same  time  of  the  date  on  which  it  received  the 
notification. 

Article  24 

Non-Signatory  Powers  which  have  accepted  the  Geneva 
Convention  of  the  6th  July,  1906,  may  accede  to  the  present 
Convention. 

A  Power  which  desires  to  accede  notifies  its  intention  in 
writing  to  the  Netherhind  Government,  forwarding  to  it  the 
act  of  accession,  which  shall  be  deposited  in  the  archives  of  the 
said  Government. 

The  said  Government  shall  immediately  forward  to  all  the 
other  Powers  a  duly  certified  copy  of  the  notification,  as  well 
as  of  the  act  of  accession,  mentioning  the  date  on  which  it 
received  the  notification. 

Article  25 

The  present  Convention,  duly  ratified,  shall  replace  as 
between  Contracting  Powers,  the  Convention  of  the  29th  July, 
1899,  for  the  adaptation  to  naval  warfare  of  the  principles  of 
the  Geneva  Convention. 

The  Convention  of  1899  remains  in  force  as  between  the 
Powers  which  signed  it  but  which  do  not  also  ratify  the  present 
Convention. 

Note.  —  Here  follow  the  usual  provisions  as  to  ratification,  denunciar 
tion,  and  accession,  for  which  see  Part  III,  No.  2,  page  178. 

7.   Proclamation  by  the  Commander  of  an  Occupying  Force 
in  the  Boer  War 

I,  C.  J.  Wessels,  Head  Commandant  of  the  Burgher  Forces 
of  the  Orange  Free  State,  on  the  borders  of  Griqualand  West, 
having  noticed  the  proclamation  of  His  Honour  the  State  Presi- 
dent, dated  Bloemfontein,  the  14th  Oetol)er,  1899,  by  which  the 
Commanders-in-Chief  of  the  various  divisions  of  the  burgher 
forces  of  the  Orange  Free  State  are  empowered  to  take  measures 
against  those  communities,  villages,  and  persons,  who  act  con- 
trary to  the  usages  of  war  during  the  war  which  has  been  forced 
upon  the  people  of  the  South  African  Republic  and  Orange  Free 


THE  LAW  OF  WAR  213 

State  by  the  Government  of  Her  Majesty  the  Queen  of  Great 
Britain  and  Ireland; 

Taking  into  consideration  the  success  of  the  United  Repubh- 
can  arms,  which  has  resulted  in  the  occupation  of  a  portion  of 
the  British  territory  known  as  Griqualand  West,  comprising 
the  Divisions  of  Herbert,  Hay,  Barkly,  and  Kimberley,  exclud- 
ing the  town  of  Kimberley  and  its  commonage  with  a  radius  of 
four  miles  beyond  those  limits; 

And  whereas  it  has  become  necessary  to  take  steps  against  the 
communities,  villages,  and  persons  who  act  contrary  to  the 
usages  of  war  in  the  said  districts  occupied  by  the  burghers 
and  troops  of  the  Orange  Free  State  and  South  African  Repub- 
lic; and  also  to  take  steps  with  regard  to  the  requisitions  (for 
supplies)  which  are  considered  necessary  for  the  needs  and 
maintenance  of  the  burghers  and  troops  of  the  Orange  Free 
State  and  South  African  Republic  in  the  said  area; 

Have  decided,  and  hereby  decree  by  virtue  of  the  power  vested 
in  me  by  the  above  proclamation,  and  declare  for  general  infor- 
mation, the  following  rules  and  regulations:  — 

I.  The  Martial  Law  of  the  Orange  Free  State,  No.  10,  1899, 
is  hereby  declared  to  be  in  force  in  the  districts  and  their  in- 
habitants extending  over  the  area  at  present  occupied  by  the 
officers,  burghers,  and  troops  of  the  Orange  Free  State  under 
my  command,  or  which  may  be  occupied  later  on,  with  regard 
to  any  act  which  may  tend  to  endanger  the  safety  of  the  burghers 
and  men,  or  harm  them,  or  assist  the  enemy. 

n.  The  said  Martial  Law  is  considered  to  be  in  force  over 
the  whole  of  a  ward,  district,  or  other  administrative  division, 
as  soon  as  it  is  posted  up  or  proclaimed  in  one  of  the  communi- 
ties forming  a  portion  thereof. 

in.  All  persons,  not  forming  a  portion  of  the  British  Army, 
and  who 

(a)  Serve  the  enemy  as  spies; 

(6)  Mislead  the  burghers  and  men  of  the  South  African 
Republic  or  Orange  Free  State  when  acting  as  guides; 

(c)  Kill,  murder,  or  plunder  persons  belonging  to  one  of  the 
Republics,  or  forming  a  portion  of  their  following  or  train ; 


214  DOCUMENTS  ON  INTERNATIONAL  LAW 

(rf)  Destroy  bridges,  or  injure  telegraph  lines,  heliographic 
instnimonts,  railway  linos  or  portions  thereof,  whereby  the 
said  Republics  should  be  impeded,  or  injury  inflicted  on  their 
people  or  property,  or  should  try  to  repair  or  improve  damage 
done  by  the  Republican  troops  to  property  or  institutions,  or 
should  burn  or  damage  ammunition,  munitions  of  war,  or 
quarters  or  camps  of  the  men  of  the  said  Republics; 

(e)  Or  should  take  up  arms  against  the  men  of  the  Republics, 
shall  be  punishable  at  the  discretion  of  the  Krijgsraad  (i.e., 
War-Council)  with  death,  or  imprisonment  not  exceeding  15 
years. 

IV.  The  persons  entrusted  with  the  prosecution  must  see  to 
the  constitution  of  a  Krijgsraad  for  enquiry  into  every  case 
and  the  passing  of  sentence. 

V.  No  sentence  of  death  shall  be  carried  out  until  it  has 
been  confirmed  by  the  President  of  the  Orange  Free  State. 

VI.  All  commandants  or  commanding  officers  of  divisions 
acting  independently  (of  each  other)  have  the  right  to  make 
demands  for  things  necessary  for  the  support  of  the  men  and 
burghers.  Other  necessaries  which  may  be  considered  indis- 
pensable for  the  army  can  only  be  demanded  by  the  Head  Com- 
mandant, or  the  officer  acting  as  Head  Commandant. 

VII.  I  further  hereby  declare  that  life  and  property  will  be 
guaranteed  to  all  who  place  themselves  under  the  protection  of 
the  Government  of  the  Orange  Free  State  or  South  African 
Republic,  and  their  duly  appointed  officers  whose  laws  and 
orders  they  will  carry  out  and  obey. 

VIII.  Nobody  who  does  not  act  in  a  hostile  manner  against 
the  Government  of  the  Orange  Free  State  or  South  African 
Republic  or  their  officials,  officers,  laws,  or  orders,  will  experi- 
ence any  harm. 

IX.  Those  who  refuse  to  submit  are  hereby  granted  per- 
mission to  leave  the  territory  occupied  by  the  army  within 
14  days. 

X.  All  persons  who  have  been  driven  away  from  or  have 
left  their  farms  or  homes,  and  who  now  submit  to  the  regula- 
tions herein  set  forth,  may  return  to  their  homes. 


THE  LAW  OF  WAR  215 

Given  under  my  hand  at  Olifantsfontein,  this  11th  day  of 
November,  1899. 

(Signed)  C.  J.  Wessels, 

Head  Commandant. 

—  (State   Papers    of    Cape   Colony,  Magisterial  Reports,   pp. 
69-71,  August,  1900.) 

8.   Japanese  Plan  for  the  Military  Occupation  of  the 
Island  of  Sakhalin,  1905 

1.  The  extent  of  the  occupation  shall  comprise  the  whole  of 
Sakhalin  Island,  adjacent  islands,  and  territorial  waters. 

2.  The  position  of  army  stations  during  the  time  of  the 
occupation  shall  be  decided  according  to  circumstances;  but 
the  chief  military  administration  offices  shall  be  stationed  at 
Alexandrovski,  Zuikoff,  and  Korsakovski  under  the  charge  of 
the  highest  officer  of  the  army  to  be  stationed  at  each  of  them, 
their  administrative  boundaries  following  the  old  lines  of  dis- 
trict demarcation. 

3.  Any  movable  property  which  belongs  to  the  enemy's 
state  and  which  is  useful  in  military  operations,  shall  be  seized 
as  booty. 

4.  New  plans  shall  not  be  inaugurated  or  existing  laws  and 
customs  altered,  save  in  case  of  necessity  for  administration  or 
for  military  operations. 

5.  The  services  of  the  old  administrative  officials  (those 
connected  with  civil  suit,  collection  of  taxes,  post,  telegraph, 
fisheries,  forestry,  and  mining)  may  be  made  use  of  as  they 
are  required,  so  far  as  they  do  not  affect  the  safety  of  our  army; 
and  in  this  case  a  certain  remuneration  shall  be  paid  them.  It 
depends  upon  circumstances  whether  these  officials  shall  be 
employed  as  officials  or  as  mere  advisers.  If  they  avail  them- 
selves of  their  authority  for  impeding  our  military  operations, 
they  shall  be  punished  according  to  martial  law. 

6.  Taxes  and  other  unposts  shall  be  collected  as  far  as  possi- 
ble in  accordance  with  the  existing  rules,  and  applied  towards 
the  expenses  of  administration.     The  business  of  the  inhabi- 


216  DOCUMENTS  ON  INTERNATIONAL  LAW 

tants  (including  neutrals)  shall  therefore  not  be  prohibited ;  but 
if  they  fail  to  pay  the  taxes  or  imposts,  or  behave  illegally,  not 
only  shall  their  business  be  prohibited,  but  a  fine  may  be  im- 
posed upon  them. 

7.  No  one  shall  be  allowed  to  keep  arms  or  ammunition  unless 
by  special  permit  from  our  army. 

8.  Irregular  combatants,  individual  opposers,  and  those  who 
speak  or  behave  against  our  army,  shall  be  punished  according 
to  martial  law. 

9.  Prisoners  in  jail  and  those  recognized  as  harmful  to  our 
army  may  be  sent  away  into  the  Maritime  Province  by  certain 
reasonable  means. 

10.  Those  people  who  desire  to  return  to  their  home  country 
shall  be  sent  to  the  Maritime  Province. 

11.  The  inhabitants  shall  not  be  allowed  to  hold  communi- 
cation or  correspondence  with  any  places  outside  the  island. 
They  shall  also  not  be  permitted  to  hold  an  assembly  or  to  issue 
printed  matter  without  permit. 

12.  The  rate  of  exchange  between  our  paper  money  and  the 
Russian  coins  shall  be  fixed  and  published. 

13.  Until  the  time  of  completing  the  occupation,  no  vessels 
or  persons,  other  than  those  useful  in  military  operations,  shall 
be  allowed  to  enter  the  territorial  waters  of  the  island.  This 
rule  holds  good  even  after  the  completion  of  the  occupation  for 
those  without  a  special  permit  from  the  Minister  of  War  or  the 
Commander  of  the  Occupation  Army.  If  the  Minister  of  War 
issues  such  a  permit,  the  Commander  of  the  Occupation  Army 
shall  be  notified. 

14.  Fishing  being  harmful  to  military  operations,  it  shall 
be  prohibited,  except  for  those  with  a  special  permit  granted 
on  account  of  necessity  to  the  army.  —  (Takahashi,  International 
Law  Applied  to  the  Russo-Japanese  War,  pp.  225,  227.) 


THE  LAW  OF  WAR  217 

9.   The  Hague  Convention  of  1907  with  Regard  to  Immunities 
from  Capture  in  Naval  War 

Chapter  I  —  Postal  Correspondence 

Article  1 

The  postal  correspondence  of  neutrals  or  belligerents,  what- 
ever its  official  or  private  character,  found  at  sea  on  board  a 
neutral  or  enemy  ship  is  inviolable.  If  the  ship  is  detained, 
the  correspondence  is  forwarded  by  the  captor  with  the  least 
possible  delay. 

The  provisions  of  the  preceding  paragraph  do  not,  in  case  of 
violation  of  blockade,  apply  to  correspondence  proceeding  to  or 
from  a  blockaded  port. 

Article  2 

The  inviolability  of  postal  correspondence  does  not  exempt  a 
neutral  mail-ship  from  the  laws  and  customs  of  naval  war 
respecting  neutral  merchant-ships  in  general.  The  ship,  how- 
ever, may  not  be  searched  except  when  absolutely  necessary, 
and  then  only  with  as  much  consideration  and  expedition  as 
possible. 

Chapter  II  —  Exemption  from  Capture  of  Certain  Vessels 

Article  3 

Vessels  employed  exclusively  in  coast  fisheries,  or  small  boats 
employed  in  local  trade,  together  with  their  appliances,  rigging, 
tackle  and  cargo,  are  exempt  from  capture. 

This  exemption  no  longer  applies  from  the  moment  that  they 
take  any  part  whatever  in  hostilities. 

The  Contracting  Powers  bind  themselves  not  to  take  advan- 
tage of  the  harmless  character  of  the  said  vessels  in  order  to 
use  them  for  military  purposes  while  preserving  their  peaceful 
appearance. 

Article  4 

Vessels  employed  on  religious,  scientific,  or  philanthropic 
missions  are  likewise  exempt  from  capture. 


218  DOCUMENTS  ON  INTERNATIONAL  LAW 

Chapter  III  —  Regulations  regarding  the  Cnnvs  of  Enemj' 
Merchant-Ships  captured  by  a  BeUigerent 

Article  5 

When  an  enemy  merchant-ship  is  captured  by  a  belUgerent, 
such  of  its  crew  as  are  subjects  or  citizens  of  a  neutral  State 
are  not  made  prisoners  of  war. 

The  same  principle  applies  in  the  case  of  the  captain  and 
officers,  likewise  subjects  or  citizens  of  a  neutral  State,  if  they 
give  a  formal  undertaking  in  writing  not  to  serve  on  an  enemy 
ship  while  the  war  lasts. 

Article  6 

The  captains,  officers,  and  members  of  the  crew,  if  subjects 
or  citizens  of  the  enemy  State,  are  not  made  prisoners  of  war, 
provided  that  they  undertake,  on  the  faith  of  a  written  promise, 
not  to  engage,  while  hostilities  last,  in  any  service  connected 
with  the  operations  of  the  war. 

Article  7 
The  names  of  the  persons  retaining  their  liberty  under  the 
conditions  laid  down  in  Article  5,  in  the  second  paragraph,  and 
in  Article  6,  are  notified  by  the  belligerent  captor  to  the  other 
belligerent.  The  latter  is  forbidden  knowingly  to  employ  the 
said  persons. 

Article  8 
The  provisions  of  the  three  preceding  articles  do  not  apply 
to  ships  taking  part  in  hostilities. 

Chapter  IV  —  Final  Provisions 

Article  9 
The  provisions  of  the  present  Convention  do  not  apply  except 
between  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Note.  —  Articles  10-14,  which  follow  are  the  same,  mutatis  mutandis 
as  Articles  4-8  in  the  Convention  with  Regard  to  the  Opening  of  Hostili- 
ties, for  which  see  Part  III,  No.  2,  page  178. 


THE  LAW  OF  WAR  219 


10.   Visitation  and  Search 

Extract  from  the  Judgment  of  Mr.  Justice  Story 
IN  THE  Case  of  the  Marianna  Flora 

In  considering  these  points,  it  is  necessary  to  ascertain  what 
are  the  rights  and  duties  of  armed  and  other  ships,  navigating 
the  ocean  in  time  of  peace.  It  is  admitted,  that  the  right  of 
visitation  and  search  does  not,  under  such  circumstances,  belong 
to  the  pubhc  ships  of  any  nation.  This  right  is  strictly  a  bellig- 
erent right,  allowed  by  the  general  consent  of  nations  in  time  of 
war,  and  limited  to  those  occasions.  It  is  true,  that  it  has  been 
held  in  the  courts  of  this  country,  that  American  ships,  offend- 
ing against  our  laws,  and  foreign  ships,  in  like  manner,  offend- 
ing within  our  jurisdiction,  may,  afterwards,  be  pursued  and 
seized  upon  the  ocean,  and  rightfully  brought  into  our  ports 
for  adjudication.  This,  however,  has  never  been  supposed  to 
draw  after  it  any  right  of  visitation  or  search.  The  party,  in 
such  case,  seizes  at  his  peril.  If  he  establishes  the  forfeiture, 
he  is  justified.  If  he  fails,  he  must  make  full  compensation  in 
damages. 

Upon  the  ocean,  then,  in  time  of  peace,  all  possess  an  entire 
equality.  It  is  the  common  highway  of  all,  appropriated  to  the 
use  of  all;  and  no  one  can  vindicate  to  himself  a  superior  or 
exclusive  prerogative  there.  Every  ship  sails  there  with  the 
unquestionable  right  of  pursuing  her  own  lawful  business  with- 
out interruption;  but,  whatever  may  be  that  business,  she  is 
bound  to  pursue  it  in  such  a  manner  as  not  to  violate  the  rights 
of  others.  The  general  maxim  in  such  cases  is,  sic  utere  tuo,  ut 
non  alienum  Icedas. 

It  has  been  argued,  that  no  ship  has  a  right  to  approach 
another  at  sea;  and  that  every  ship  has  a  right  to  draw  round 
her  a  line  of  jurisdiction,  within  which  no  other  is  at  liberty  to 
intrude.  In  short,  that  she  may  appropriate  so  much  of  the 
ocean  as  she  may  deem  necessary  for  her  protection,  and  pre- 
vent any  nearer  approach. 

This  doctrine  appears  to  us  novel,  and  is  not  supported  by 


220  DOCUMENTS  ON  INTERNATIONAL  LAW 

any  authority.  It  goes  to  establish  upon  the  ocean  a  terri- 
torial jurisdiction,  like  that  which  is  claimed  by  all  nations 
within  cannon-shot  of  their  shores,  in  virtue  of  their  general 
sovereignty.  But  the  latter  right  is  founded  upon  the  principle 
of  sovereign  and  permanent  appropriation,  and  has  never  been 
successfully  asserted  beyond  it.  Every  vessel  undoubtedly 
has  a  right  to  the  use  of  so  much  of  the  ocean  as  she  occupies, 
and  as  is  essential  to  her  own  movements.  Beyond  this,  no 
exclusive  right  has  ever  yet  been  recognized,  and  we  see  no 
reason  for  admitting  its  existence.  Merchant  ships  are  in  the 
constant  habit  of  approaching  each  other  on  the  ocean,  either 
to  relieve  their  own  distress,  to  procure  information,  or  to  ascer- 
tain the  character  of  strangers;  and,  hitherto,  there  has  never 
been  supposed  in  such  conduct  any  l)reach  of  the  customary 
observances,  or  of  the  strictest  principles  of  the  law  of  nations. 
In  respect  to  ships  of  war  sailing,  as  in  the  present  case,  under 
the  authority  of  their  government,  to  arrest  pirates,  and  other 
public  offenders,  there  is  no  reason  why  they  may  not  approach 
any  vessels  descried  at  sea,  for  the  purpose  of  ascertaining 
their  real  characters.  Such  a  right  seems  indispensable  for  the 
fair  and  discreet  exercise  of  their  authority;  and  the  use  of  it 
cannot  be  justly  deemed  indicative  of  any  design  to  insult  or 
injure  those  they  approach,  or  to  impede  them  in  their  lawful 
commerce.  On  the  other  hand,  it  is  as  clear,  that  no  ship  is, 
under  such  circumstances,  bound  to  lie  by,  or  wait  the  approach 
of  any  other  ship.  She  is  at  full  liberty  to  pursue  her  voyage 
in  her  own  way,  and  to  use  all  necessary  precautions  to  avoid 
any  suspected  sinister  enterprise  or  hostile  attack.  She  has 
a  right  to  consult  her  own  safety;  but,  at  the  same  time,  she 
must  take  care  not  to  violate  the  rights  of  others.  She  may 
use  any  precautions  dictated  by  the  prudence  or  fears  of  her 
officers;  either  as  to  delay,  or  the  progress  or  course  of  her 
voyage;  but  she  is  not  at  liberty  to  inflict  injuries  upon  other 
innocent  parties,  simply  because  of  conjectural  dangers.  These 
principles  seem  to  us  the  natural  result  of  the  common  duties 
and  rights  of  nations  navigating  the  ocean  in  time  of  peace. 
Such  a  state  of  things  carries  with  it  very  different  obligations 


THE  LAW  OF  WAR  221 

and  responsibilities  from  those  which  belong  to  public  war,  and 
is  not  to  be  confounded  with  it.  —  (II  Weaton,  1.) 

Note.  —  This  was  a  most  extraordinary  case.  Each  party  mistook 
the  other  for  a  pirate,  and  commenced  hostile  operations  in  consequence. 
In  reaUty  the  Alligator  was  a  United  States  warship,  and  the  Marianna 
Flora  an  innocent  Portuguese  merchantman.  But  the  latter  behaved  in 
such  a  way  that  Lieutenant  Stockton,  the  commander  of  the  former,  was 
justified  in  deeming  her  a  pirate,  whereas  her  captain  had  no  justification 
for  regarding  the  Alligator  as  one.  The  Marianna  Flora  was  captured  and 
brought  in  for  adjudication.  In  the  end  she  was  released  as  innocent; 
but  her  claim  for  damages  against  Lieutenant  Stockton  was  disallowed. 
Her  misfortunes  occurred  through  her  own  fault. 


11.   The  Hague  Convention  of  1907  with  Regard  to  the  Estab- 
lishment of  an  International  Prize  Court 

Part  I.     General  Provisions 

Article  1 
The  validity  of  the  capture  of  a  merchant-ship  or  its  cargo 
is  decided  before  Prize  Courts  in  accordance  with  the  present 
Convention  when  neutral  or  enemy  property  is  involved. 

Article  2 

Jurisdiction  in  matters  of  prize  is  exercised  in  the  first  instance 
by  the  Prize  Courts  of  the  belligerent  captor. 

The  judgments  of  these  Courts  are  pronounced  in  public  or 
are  officially  notified  to  parties  concerned  who  are  neutrals  or 
enemies. 

Article  3 

The  judgments  of  national  Prize  Courts  may  be  brought  before 
the  international  Prize  Court  — 

(1)  When  the  judgment  of  the  national  Prize  Courts  affects 
the  property  of  a  neutral  Power  or  individual; 

(2)  When  the  judgment  affects  enemy  property  and  relates 
to— 

(a)  Cargo  on  board  a  neutral  ship ; 

(6)  An  enemy  ship  captured  in  the  territorial  waters  of  a 


222  DOCUMENTS  ON  INTERNATIONAL  LAW 

neutral  Power,  when  that  Power  has  not  made  the  capture  the 
subject  of  a  diplomatic  claim; 

(c)  A  claim  based  upon  the  allegation  that  the  seizure  has 
been  effected  in  violation,  either  of  a  conventional  stipulation 
in  force  between  the  belligerent  Powers,  or  of  an  enactment 
issued  by  the  belligerent  captor. 

The  appeal  against  the  judgment  of  the  National  Court  can 
be  based  on  the  ground  that  the  judgment  was  wrong  either  in 
fact  or  in  law. 

Article  4 

An  appeal  may  be  brought  — 

(1)  By  a  neutral  Power,  if  the  judgment  of  the  National 
Tribunals  affects  its  property  or  the  property  of  its  subjects 
or  citizens  (Article  3  (1)),  or  if  the  capture  of  an  enemy  vessel 
is  alleged  to  have  taken  place  in  the  territorial  waters  of  that 
power.     (Articles  (2)  (6)); 

(2)  By  a  neutral  individual,  if  the  judgment  of  the  national 
Court  affects  his  property  (Article  3  (1)  ),  subject,  however,  to 
the  reservation  that  the  Power  to  which  he  belongs  may  forbid 
him  to  bring  the  case  before  the  Court,  or  may  itself  undertake 
the  proceedings  in  his  place; 

(3)  By  an  individual  subject  or  citizen  of  an  enemy  Power, 
if  the  judgment  of  the  National  Court  affects  his  property  in 
the  cases  referred  to  in  Article  3  (2),  except  that  mentioned  in 
paragraph  (6). 

Article  5 

An  appeal  may  also  be  brought  on  the  same  conditions  as  in 
the  preceding  Article,  by  persons  belonging  either  to  Neutral 
States  or  to  the  enemy,  deriving  their  rights  from  and  entitled 
to  represent  an  individual  qualified  to  appeal,  and  who  have 
taken  part  in  the  proceedings  Ix'fore  the  National  Court.  Per- 
sons so  entitled  may  appeal  separately  to  the  extent  of  their 
interest. 

The  same  principle  applies  in  the  case  of  persons  belonging 
either  to  neutral  States  or  to  the  enemy,  who  derive  their  rights 
from  and  are  entitled  to  represent  a  neutral  Power  the  property 
of  which  was  the  subject  of  the  decision. 


THE  LAW  OF  WAR  223 

Article  6 

When,  in  accordance  with  the  above  Article  3,  the  Interna- 
tional Court  has  jurisdiction,  the  national  Courts  cannot  deal 
with  a  case  in  more  than  two  instances.  The  municipal  law 
of  the  belligerent  captor  shall  decide  whether  the  case  may  be 
brought  before  the  International  Court  after  judgment  has  been 
given  in  first  instance  or  only  after  an  appeal. 

If  the  national  Courts  fail  to  give  final  judgment  within  two 
years  from  the  date  of  capture,  the  case  may  be  carried  direct 
to  the  International  Court. 

Article  7 

If  a  question  of  law  to  be  decided  is  covered  by  a  Treaty  in 
force  between  the  belligerent  captor  and  a  Power  which  is 
itself,  or  the  subject  or  citizen  of  which  is,  a  party  to  the  pro- 
ceedings, the  Court  is  governed  by  the  provisions  of  the  said 
Treaty. 

In  the  absence  of  such  provisions,  the  Court  shall  apply  the 
rules  of  international  law.  If  no  generally  recognized  rule 
exists,  the  Court  shall  give  judgment  in  accordance  with  the 
general  principles  of  justice  and  equity. 

The  above  provisions  apply  equally  to  questions  relating  to 
the  order  and  mode  of  proof. 

If,  in  accordance  with  Article  3  (2)  (c),  the  ground  of  appeal 
is  the  violation  of  an  enactment  issued  by  the  belligerent  captor, 
the  Court  shall  enforce  the  enactment. 

The  Court  may  disregard  failure  to  comply  with  the  procedure 
laid  down  in  the  legislation  of  the  belligerent  captor,  when  it 
is  of  opinion  that  the  consequences  of  complying  therewith  are 
unjust  and  inequitable. 

Article  8 

If  the  Court  pronounces  the  capture  of  the  vessel  or  cargo 
to  be  valid,  they  shall  be  disposed  of  in  accordance  with  the 
laws  of  the  belligerent  captor. 

If  it  pronounces  the  capture  to  be  null,  the  Court  shall  order 
restitution  of  the  vessel  or  cargo,  and  shall  fix,  if  there  is  occa- 


224  DOCUMENTS  ON  INTERNATIONAL  LAW 

sion,  the  amount  of  the  damages.  If  the  vessel  or  cargo  have 
been  sold  or  destroyed,  the  Court  shall  d(>termine  the  compensa- 
tion to  be  given  to  the  owner  on  this  account. 

If  the  national  Prize  Court  pronounced  the  capture  to  be 
null,  the  Court  can  only  be  asked  to  decide  as  to  the  damages. 

Article  9 
The  Contracting  Powers  undertake  to  submit  in  good  faith 
to  the  decisions  of  the  International  Prize  Court  and  to  carry 
them  out  with  the  least  possible  delay. 

Part  II.     Constitution  of  the  International 
Prize  Court 

Article  10 

The  International  Prize  Court  is  composed  of  Judges  and 
Deputy  Judges,  who  will  be  appointed  by  the  Contracting 
Powers,  and  must  all  be  jurists  of  known  ]:)roficiency  in  ques- 
tions of  international  maritime  law,  and  of  the  highest  moral 
reputation. 

The  appointment  of  these  Judges  and  Deputy  Judges  shall 
be  made  within  six  months  after  the  ratification  of  the  present 
Convention. 

Article  11 

The  Judges  and  Deputy  Judges  are  appointed  for  a  period  of 
six  years,  reckoned  from  the  date  on  which  the  notification  of 
their  appointment  is  received  by  the  Administrative  Council 
established  by  the  Convention  for  the  Pacific  Settlement  of 
International  Disputes  of  the  29th  July,  1899.  Their  appoint- 
ments can  be  renewed. 

Should  one  of  the  Judges  or  Deputy  Judges  die  or  resign,  the 
same  procedure  is  folloAved  in  filling  the  vacancy  as  was  followed 
in  appointing  him.  In  this  case,  the  appointment  is  made  for 
a  fresh  period  of  six  years. 

Article  12 
The  Judges  of  the  International  Prize  Court  are  all  equal  in 
rank  and  have  precedence  according  to  the  date  on  which  the 


THE  LAW  OF  WAR  225 

notification  of  their  appointment  was  received  (Article  11, 
paragraph  1)  and  if  they  sit  by  rota  (Article  15,  paragraph  2), 
according  to  the  date  on  which  they  entered  upon  their  duties. 
When  the  date  is  the  same,  the  senior  in  age  takes  precedence. 
The  Deputy  Judges  when  acting  are  in  the  same  position  as 
the  Judges.     They  rank,  however,  after  them. 

Article  13 

The  Judges  enjoy  diplomatic  privileges  and  immunities  in 
the  performance  of  their  duties  and  when  outside  their  own 
country. 

Before  taking  their  seat,  the  Judges  must  take  an  oath,  or 
make  a  solemn  affirmation  before  the  Administrative  Council, 
to  discharge  their  duties  impartially  and  conscientiously. 

Article  I4 

The  Court  is  composed  of  fifteen  Judges;  nine  Judges  con- 
stitute a  quorum. 

A  Judge  who  is  absent  or  prevented  from  sitting  is  replaced 
by  the  Deputy  Judge. 

Article  15 

The  Judges  appointed  by  the  following  Contracting  Powers: 
Germany,  the  United  States  of  America,  Austria-Hungary, 
France,  Great  Britain,  Italy,  Japan,  and  Russia,  are  always 
summoned  to  sit. 

The  Judges  and  Deputy  Judges  appointed  by  the  other 
Contracting  Powers  sit  by  rota  as  shown  in  the  table  annexed 
to  the  present  Convention;  their  duties  may  be  performed 
successively  by  the  same  person.  The  same  Judge  may  be 
appointed  by  several  of  the  said  Powers. 

Article  16 

If  a  belligerent  Power  has,  according  to  the  rota,  no  Judge 
sitting  in  the  Court,  it  may  ask  that  the  Judge  appointed  by  it 
should  take  part  in  the  settlement  of  all  cases  arising  from  the 
war.  Lots  shall  then  be  drawn  as  to  which  of  the  Judges 
entitled  to  sit  according  to  the  rota  shall  withdraw.     This 


226  DOCUMENTS  ON  INTERNATIONAL  LAW 

arrangement  does  not  affect  the  Judge  appointed  by  the  other 
belligerent. 

Article  17 

No  Judge  may  sit  who  has  been  a  party,  in  any  way  what- 
ever, to  the  sentence  pronounced  by  the  National  Courts,  or 
has  taken  part  in  the  case  as  counsel  or  advocate  for  one  of  the 
parties. 

No  Judge  or  Deputy  Judge  may,  during  his  tenure  of  office, 
appear  as  agent  or  advocate  before  the  International  Prize 
Court,  nor  act  for  one  of  the  parties  in  any  capacity  whatever. 

Article  18 
The  belligerent  captor  is  entitled  to  appoint  a  naval  officer 
of  high  rank  to  sit  as  Assessor,  but  with  no  voice  in  the  decision. 
A  neutral  Power,  which  is  a  party  to  the  proceedings  or  the 
subject  or  citizen  of  which  is  a  party,  has  the  same  right  of 
appointment;  if  in  applying  this  last  provision  more  than  one 
Power  is  concerned,  they  must  agree  among  themselves,  if  neces- 
sary by  lot,  on  the  officer  to  be  appointed. 

Article  19 

The  Court  elects  its  President  and  Vice-President  by'  an 
absolute  majority  of  the  votes  cast.  After  two  ballots,  the 
election  is  made  by  a  bare  majority,  and,  in  case  the  votes  are 
equal,  by  lot. 

Article  20 

The  Judges  of  the  International  Prize  Court  are  entitled  to 
travelling  allowances  in  accordance  with  the  regnilations  in 
force  in  their  own  country,  and  in  addition  receive,  while  the 
Com't  is  sitting  or  while  they  are  carrying  out  duties  conferred 
upon  them  by  the  Court,  a  sum  of  100  Netherland  florins  per 
diem. 

These  payments  are  included  in  the  general  expenses  of  the 
Court  dealt  with  in  Article  47,  and  are  paid  through  the  Inter- 
national Bureau  established  l)y  the  Convention  of  the  29th 
July,  1899. 


THE  LAW  OF  WAR  227 

The  Judges  may  not  receive  from  their  own  Government  or 
from  that  of  any  other  Power  any  remuneration  in  their  capacity 
of  members  of  the  Court. 

Article  21 
The  International  Prize  Court  sits  at  the  Hague  and  may  not, 
except  in  circumstances  beyond  its  control,  be  transferred  else- 
where without  the  consent  of  the  belhgerents. 

Article  22 
The  Administrative  Council  fulfils  the  same  functions  wath 
regard  to  the  International  Prize  Court  as  with  regard  to  the 
Permanent  Court  of  Arbitration,  but  only  Representatives  of 
Contracting  Powers  shall  be  members  of  it. 

Article  23 

The  International  Bureau  acts  as  registry  to  the  International 
Prize  Court  and  shall  place  its  offices  and  staff  at  the  disposal 
of  the  Court.  It  has  the  custody  of  the  archives  and  carries  out 
the  administrative  work. 

The  Secretary-General  of  the  International  Bureau  acts  as 
Registrar. 

The  necessary  secretaries  to  assist  the  Registrar,  translators, 
and  shorthand  writers  are  appointed  and  sworn  in  by  the 
Court. 

Article  24 

The  Court  determines  which  language  it  shall  use  and  the 
languages  the  employment  of  which  shall  be  authorized  before  it. 

The  official  language,  however,  of  the  National  Courts  which 
have  had  cognizance  of  the  case  may  always  be  employed  before 
the  Court. 

Article  25 

Powers  which  are  concerned  in  a  case  may  appoint  special 
agents  to  act  as  intermediaries  between  themselves  and  the 
Court.  They  may  also  engage  counsel  or  advocates  to  defend 
their  rights  and  interests. 


228  DOCUMENTS  ON   INTERNATIONAL  LAW 

Article  26 
A  private  person  concerned  in  a  case  will  be  represented 
before  the  Court  by  an  attorney,  who  must  be  either  an  advocate 
qualificxl  to  plead  before  a  Court  of  Appeal  or  a  High  Court 
of  one  of  the  Contracting  States,  or  a  lawyer  practising  before 
a  similar  Court,  or  lastly,  a  professor  of  law  at  one  of  the  higher 
teaching  centres  of  those  countries. 

Article  27 

For  the  service  of  all  notices,  in  particular  on  the  parties, 
witnesses,  or  experts,  the  Court  may  apply  direct  to  the  Govern- 
ment of  the  State  on  the  territory  of  which  the  service  is  to  be 
carried  out.  The  same  principle  applies  in  the  case  of  steps 
being  taken  to  procure  evidence. 

Requests  for  this  purpose  are  to  be  executed  so  far  as  the 
means  at  the  disposal  of  the  Power  applied  to  under  its  Municipal 
law,  allow.  They  cannot  be  rejected  unless  the  Power  in  ques- 
tion considers  them  calculated  to  impair  its  sovereign  rights 
or  its  safety.  If  the  request  is  complied  with,  the  fees  charged 
must  only  comprise  the  expenses  actually  incurred. 

The  Court  is  equally  entitled  to  act  through  the  Power 
within  the  territory  of  which  it  is  meeting. 

Notices  to  be  given  to  parties  in  the  place  where  the  Court 
sits  may  be  served  through  the  International  Bureau. 

Part  111.     Procedure  in  the  International 
Prize  Court 

Article  28 

An  appeal  to  the  International  Prize  Court  is  entered  by 
means  of  a  written  declaration  made  in  the  National  Court 
which  has  already  dealt  with  the  case  or  addressed  to  the  Inter- 
national Bureau;  in  the  latter  case  the  appeal  may  be  entered 
by  telegram. 

The  period  within  which  the  appeal  must  be  entered  is  fixed 
at  120  days,  counting  from  the  day  the  decision  is  delivered  or 
notified  (Article  2,  paragraph  2). 


THE  LAW  OF  WAR  229 

Article  29 

If  the  notice  of  appeal  is  entered  in  the  National  Court,  such 
Court,  without  considering  the  question  whether  the  appeal  was 
entered  in  due  time,  will  transmit  within  seven  days  the  record 
of  the  case  to  the  International  Bureau. 

If  the  notice  of  appeal  is  sent  to  the  International  Bureau, 
the  Bureau  will  immediately  inform  the  National  Court,  when 
possible  by  telegraph.  The  latter  will  transmit  the  record  as 
provided  in  the  preceding  paragraph. 

When  the  appeal  is  brought  by  a  neutral  individual  the  Inter- 
national Bureau  will  immediately  inform  by  telegraph  the 
appellant's  Government,  in  order  to  enable  it  to  avail  itself  of 
the  rights  given  by  the  second  paragraph  of  Article  4. 

Article  30 

In  the  case  provided  for  in  Article  6,  paragraph  2,  the  notice 
of  appeal  can  be  addressed  to  the  International  Bureau  only. 
It  must  be  entered  within  thirty  days  of  the  expiry  of  the  period 
of  two  years. 

Article  31 

If  the  appellant  does  not  enter  his  appeal  within  the  period 
laid  down  in  Articles  28  or  30,  it  shall  be  rejected  without 
discussion. 

Provided  that  if  he  can  show  that  he  was  prevented  from  so 
doing  by  circumstances  beyond  his  control,  and  that  the  appeal 
was  entered  within  sixty  days  after  such  circumstances  had 
ceased  to  operate,  the  Court  may,  after  hearing  the  respondent, 
grant  reUef  from  the  effect  of  the  above  provision. 

Article  32 
If  the  appeal  has  been  entered  in  time,  a  certified  copy  of 
the  notice  of  appeal  is  forthwith  officially  transmitted  by  the 
Court  to  the  respondent. 

Article  33 
If,  in  addition  to  the  parties  who  are  before  the  Court,  there 
are  other  parties  concerned  who  are  entitled  to  appeal,  or  if, 


230  DOCUMENTS  ON  INTERNATIONAL  LAW 

in  the  case  referred  to  in  Article  29,  paragraph  3,  the  Govern- 
ment which  has  received  notice  of  an  appeal  has  not  announced 
its  decision,  the  Court,  before  dealing  with  the  case,  will  await 
the  expiry  of  the  period  laid  down  in  Articles  28  or  30. 


Article  84 

The  procedure  before  the  International  Court  comprises  two 
distinct  phases:   the  written  pleadings  and  oral  (li.scussions. 

The  written  pleadings  consist  of  the  deposit  and  exchange 
of  cases,  counter-cases,  and,  if  necessary,  of  repli(^s,  of  which 
the  order  is  fixed  by  the  Court,  as  also  the  periods  within  which 
they  must  be  delivered.  The  parties  annex  thereto  all  papers 
and  documents  of  which  they  intend  to  make  use. 

A  certified  copy  of  every  document  produced  by  one  party 
must  be  communicated  to  the  other  party  through  the  medium 
of  the  Court. 

Article  35 

After  the  close  of  the  pleadings,  a  pubUc  sitting  is  held  on  a 
day  fixed  by  the  Court. 

At  this  sitting  the  parties  state  their  view  of  the  case  both 
as  to  the  law  and  as  to  the  facts. 

The  Court  may,  at  any  stage  of  the  proceedings,  suspend  the 
speeches  of  counsel,  either  at  the  request  of  one  of  the  parties, 
or  on  their  own  initiative,  in  order  that  supplementary  e\ddence 
may  be  obtained. 

Article  36 

The  International  Court  may  order  the  supplementary  evi- 
dence to  be  taken  either  in  the  manner  provided  by  Article  27, 
or  before  itself,  or  one  or  more  of  the  members  of  the  Court, 
provided  that  this  can  be  done  without  resort  to  compulsion 
or  intimidation. 

If  steps  are  to  be  taken  for  the  purpose  of  obtaining  evidence 
by  members  of  the  Court  outside  the  territory  where  it  is  sitting, 
the  consent  of  the  foreign  Government  must  be  obtained. 


THE  LAW  OF  WAR  231 

Article  37 
The  parties  receive  notice  to  attend  every  stage  of  the  pro- 
ceedings and  receive  certified  copy  of  the  Minutes. 

Article  38 

The  discussions  are  under  the  direction  of  the  President  or 
Vice-President,  or,  in  case  they  are  absent  or  cannot  act,  of 
the  senior  Judge  present. 

The  Judge  appointed  by  a  belUgerent  party  may  not  preside. 

Article  39 

The  discussions  take  place  in  pubUc,  subject  to  the  right  of 
a  Government  which  is  a  party  to  the  case  to  demand  that  they 
be  held  in  private. 

They  are  recorded  in  Minutes.  These  Minutes  are  signed  by 
the  President  and  Registrar,  and  are  the  only  authentic  record. 

Article  40 
If  a  party  does  not  appear,  despite  the  fact  that  he  has  been 
duly  cited,  or  if  a  party  fails  to  comply  with  some  step  within 
the  period  fixed  by  the  Court,  the  case  proceeds  without  that 
party,  and  the  Court  gives  judgment  in  accordance  with  the 
material  at  its  disposal. 

Article  Jfl 

The  Court  officially  notifies  to  the  parties  judgments  or  orders 
made  in  their  absence. 

Article  42 

The  Court  takes  into  consideration  in  arriving  at  its  decision 
all  the  facts,  evidence,  and  verbal  statements. 

Article  43 

The  Court  considers  its  decisions  in  private  and  the  proceed- 
ings remain  secret. 

All  questions  are  decided  by  a  majority  of  the  Judges  present. 
If  the  number  of  Judges  is  even  and  equally  divided,  the  vote 


232  DOCUMENTS  ON  INTERNATIONAL  LAW 

of  the  junior  Judge  in  the  order  of  precedence  laid  down  in 
Article  12,  paragraph  1,  is  not  counted. 

Article  44 

The  judgment  of  the  Court  must  state  the  reasons  on  which 
it  is  based.  It  recites  the  names  of  the  Judges  taking  part  in 
it,  and  also  of  the  Assessors,  if  any;  it  is  signed  by  the  Pres- 
ident and  Registrar. 

Article  4^ 

The  judgment  is  delivered  in  open  Court,  the  parties  con- 
cerned being  present  or  duly  summoned  to  attend;  the  judg- 
ment is  officially  communicated  to  the  parties. 

When  this  commimication  has  been  made,  the  Court  trans- 
mits to  the  National  Prize  Court  the  record  of  the  case,  to- 
gether with  copies  of  the  various  decisions  arrived  at  and  of  the 
Minutes  of  the  proceedings. 

Article  46 

Each  party  pays  its  own  costs. 

The  party  against  whom  the  Court  decides  bears,  in  addi- 
tion, the  costs  of  the  trial,  and  also  pays  1  per  cent,  of  the  value 
of  the  subject-matter  of  the  case  as  a  contribution  to  the  general 
expenses  of  the  International  Court.  The  amount  of  these 
payments  is  fixed  in  the  judgment  of  the  Court. 

If  the  appeal  is  brought  by  an  individual,  he  will  furnish  the 
International  Bureau  with  security  to  an  amount  fixed  by  the 
Court,  for  the  purpose  of  guaranteeing  the  eventual  fulfilment 
of  the  two  obhgations  mentioned  in  the  preceding  paragraph. 
The  Court  is  entitled  to  postpone  the  opening  of  the  proceedings 
until  the  security  has  been  furnished. 

Article  47 
The  general  expenses  of  the  International  Prize  Court  are 
borne  by  the  Contracting  Powers  in  proportion  to  their  share 
in  the  composition  of  the  Court  as  laid  down  in  Article  15  and 
in  the  annexed  Table.  The  appointment  of  Deputy  Judges 
does  not  involve  any  contribution. 


THE  LAW  OF  WAR  233 

The  Administrative  Council  applies  to  the  Powers  for  the 
funds  requisite  for  the  working  of  the  Court. 

Article  48 

When  the  Court  is  not  sitting,  the  duties  conferred  upon 
it  by  Article  32,  Article  34,  paragraphs  2  and  3,  Article  35, 
paragraph  1,  and  Article  46,  paragraph  3,  are  discharged  by  a 
delegation  of  three  Judges  appointed  by  the  Court.  This 
delegation  decides  by  a  majority  of  votes. 

Article  49 

The  Court  itself  draws  up  its  own  rules  of  procedure,  which 
must  be  communicated  to  the  Contracting  Powers. 

It  will  meet  to  draw  up  these  rules  within  a  year  of  the  rati- 
fication of  the  present  Convention. 

Article  50 

The  Court  may  propose  modifications  in  the  provisions  of 
the  present  Convention  concerning  procedure.  These  proposals 
are  communicated,  through  the  medium  of  the  Netherland 
Government,  to  the  Contracting  Powers,  which  will  confer 
together  as  to  the  measures  to  be  adopted. 

Part  IV.      Final  Provisions 

Article  51 

The  present  Convention  does  not  apply  as  of  right  except  when 
the  belhgerent  Powers  are  all  parties  to  the  Convention. 

It  is  further  understood  that  an  appeal  to  the  International 
Prize  Court  can  only  be  brought  by  a  Contracting  Power  or  the 
subject  or  citizen  of  a  Contracting  Power. 

An  appeal  is  only  admitted  under  Article  5  when  both  the 
owner  and  the  person  entitled  to  represent  him  are  equally 
Contracting  Powers  or  the  subjects  or  citizens  of  Contracting 
Powers. 


234  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  52 

The  present  Convention  shall  be  ratified  and  the  ratifications 
shall  be  deposited  at  the  Hague  as  soon  as  all  the  Powers  men- 
tioned in  Article  15  and  in  the  Table  annexed  are  in  a  position 
to  do  so. 

The  deposit  of  the  ratifications  shall  take  place,  in  any  case, 
on  the  30th  June,  1909,  if  the  Powers  which  are  ready  to  ratify 
furnish  nine  Judges  and  nine  Deputy  Judges  to  the  Court,  duly 
qualified  to  constitute  a  Court.  If  not,  the  deposit  shall  be 
postponed  until  this  condition  is  fulfilled. 

A  Minute  of  the  deposit  of  the  ratifications  shall  be  drawn  up, 
of  which  a  certified  copy  shall  be  forwarded,  through  the  diplo- 
matic channel,  to  each  of  the  Powers  referred  to  in  the  first 
paragraph. 

Article  53 

The  Powers  referred  to  in  Article  15  and  in  the  Table  an- 
nexed are  entitled  to  sign  the  present  Convention  uj)  to  the  date 
of  the  deposit  of  the  ratifications  contemplated  in  paragraph  2 
of  the  preceding  Article. 

After  this  deposit,  they  can  at  any  time  accede  to  it,  purely 
and  simply.  A  Power  wishing  to  accede,  notifies  its  intention 
in  writing  to  the  Netherland  Government,  transmitting  to  it 
at  the  same  time  the  act  of  accession,  which  shall  be  deposited 
in  the  archives  of  the  said  Government.  The  latt(^r  shall  send, 
through  the  diplomatic  channel,  a  certified  copy  of  the  notifica- 
tion and  of  the  act  of  accession  to  all  the  Powers  referred  to  in 
the  precfHJing  paragraph,  informing  them  of  the  date  on  which 
it  has  received  the  notification. 

Article  5 4 

The  present  Convention  shall  come  into  force  six  months 
from  the  deposit  of  the  ratifications  contemplated  in  Article  52, 
paragraphs  1  and  2. 

The  accessions  shall  take  effect  sixty  days  after  the  notifica- 
tion of  such  accession  has  been  received  by  the  Netherland 


THE  LAW  OF  WAR  235 

Government,  or  as  soon  as  possible  on  the  expiry  of  the  period 
contemplated  in  the  preceding  paragraph. 

The  International  Court  shall,  however,  have  jurisdiction  to 
deal  with  prize  cases  decided  by  the  National  Courts  at  any 
time  after  the  deposit  of  the  ratifications  or  of  the  receipt  of 
the  notification  of  the  accessions.  In  such  cases,  the  period 
fixed  in  Article  28,  paragraph  2,  shall  only  be  reckoned  from 
the  date  when  the  Convention  comes  into  force  as  regards  a 
power  which  has  ratified  or  acceded. 

Article  55 

The  present  Convention  shall  endure  for  twelve  years  from 
the  date  at  which  it  comes  into  force,  as  determined  by  Article 
54,  paragraph  1,  even  for  the  Powers  acceding  to  it  subse- 
quently. 

There  shall  be  tacit  prolongation  for  the  term  of  six  years 
unless  this  Convention  is  denounced. 

Denunciation  must  be  notified  in  writing,  one  year  at  least 
before  the  expiry  of  each  of  the  periods  mentioned  in  the  two 
preceding  paragraphs,  to  the  Netherland  Government,  which 
will  inform  all  the  other  Contracting  Powers. 

The  denunciation  shall  only  operate  in  respect  of  the  denounc- 
ing Power.  The  Convention  shall  remain  in  force  in  the  case 
of  the  other  Contracting  Powers,  provided  that  their  share  in 
the  appointment  of  Judges  be  still  sufficient  to  allow  the  work 
of  the  Court  to  be  discharged  by  nine  Judges  and  nine  Deputy 
Judges. 

Article  56 

In  case  the  present  Convention  is  not  in  operation  as  regards 
all  the  Powers  referred  to  in  Article  15  and  the  annexed  Table, 
the  Administrative  Council  shall  draw  up  a  fist  on  the  lines  of 
that  Article  and  Table  of  the  Judges  and  Deputy  Judges  through 
whom  the  Contracting  Powers  share  in  the  composition  of  the 
Court.  The  times  allotted  by  the  said  Ta})le  to  Judges  who  are 
summoned  to  sit  in  rota  will  be  redistributed  between  the  different 
years  of  the  six-year  period  in  such  a  way  that,  as  far  as  possible, 


236  DOCUMENTS  ON  INTERNATIONAL  LAW 

the  number  of  the  Judges  of  the  Court  in  each  year  shall  be 
the  same.  If  the  number  of  Deputy  Judges  is  greater  than 
that  of  the  Judges,  the  number  of  the  latter  can  be  completed 
by  Deputy  Judges  chosen  by  lot  among  those  Powers  which  do 
not  nominate  a  Judge. 

The  list  tlrawn  up  in  this  way  by  the  Administrative  Council 
shall  be  notified  to  the  Contracting  Powers.  It  shall  be  revised 
when  the  number  of  these  Powers  is  modified  as  the  result  of 
accessions  or  denunciations. 

The  change  resulting  from  an  accession  is  not  made  until  the 
1st  January  after  the  date  on  which  the  accession  takes  effect, 
unless  the  accecUng  Power  is  a  ])elligerent  Power,  in  which  case 
it  can  demand  to  be  at  once  represented  in  the  Court,  the  pro- 
vision of  Article  16  being,  moreover,  apphcable  if  necessary. 

When  the  total  number  of  Judges  is  less  than  eleven,  seven 
Judges  form  a  quorum. 

Article  57 

Two  years  before  the  expiry  of  each  period  referred  to  in 
paragraphs  1  and  2  of  Article  55,  any  Contracting  Power  may 
demand  a  modification  of  the  provisions  of  Article  15  and  of 
the  annexed  Table,  as  regards  its  participation  in  the  composi- 
tion of  the  Court.  The  demand  shall  be  addressed  to  the 
Administrative  Council,  which  will  examine  it  and  submit  to 
all  the  Powers  proposals  as  to  the  measures  to  be  adopted.  The 
Powers  shall  inform  the  Administrative  Coimcil  of  their  de- 
cision with  the  least  possible  delay.  The  result  shall  l)e  com- 
municated at  once,  and  one  year  and  thirty  days  at  least  before 
the  expiry  of  the  said  period  of  two  years,  to  the  Power  which 
made  the  demand. 

In  such  circumstances,  the  modifications  adopted  by  the 
Powers  shall  come  into  force  from  the  commencement  of  the 
fresh  period. 

In  faith  whereof  the  Plenipotentiaries  have  appended  their 
signatures  to  the  present  Convention. 

Done  at  the  Hague,  the  18th  October,  1907,  in  a  single 
original,  which  shall  remain  deposited  in  the  archives  of  the 


THE  LAW  OF  WAR  237 

Netherland  Government,  and  duly  certified  copies  of  which 
shall  be  sent,  through  the  diplomatic  chaimel,  to  the  Powers 
designated  in  Article  15  and  in  the  Table  annexed. 

Note.  —  Owing  to  various  causes  the  Court  provided  for  in  this  Conven- 
tion has  not  yet  been  brought  into  existence.  Legislation  was  required 
in  Great  Britain  in  order  to  give  it  jurisdiction  over  British  cases;  and  the 
House  of  Lords  threw  out  the  Bill  of  the  Government.  The  controversy 
which  arose  over  the  Declaration  of  London  (see  page  333)  retarded  the 
agreement  as  to  blockade  and  contraband  of  war  which  the  maritime 
states  desired  to  see  before  they  gave  power  to  a  Court  to  decide  accord- 
ing to  "the  general  principles  of  justice  and  equity"  such  cases  as  were 
not  covered  by  recognised  rules  of  International  Law  (see  Article  7). 
And  lastly  the  susceptibiUties  of  several  of  the  smaller  states  caused  them, 
when  signing  the  Convention,  to  enter  reservations  against  Article  15.  It 
was  this  Article  which  provided  that  the  Judges  appointed  by  eight  Great 
Powers  should  always  have  a  place  among  the  fifteen  Judges  which 
compose  the  Court  while  the  appointees  of  the  other  powers  were  to  fill 
up  the  remaining  seven  seats  by  rota,  according  to  a  table  annexed  to  the 
Convention.  The  establishment  of  a  strong  International  Tribunal,  with 
jurisdiction  in  certain  cases  over  the  ships  and  sailors  of  all  civilised  states, 
would  be  a  great  step  forward  in  the  development  of  judicial  organs  for 
the  Society  of  Nations,  and  its  decisions  would  constitute  an  invaluable 
body  of  authoritative  case-law. 

12.   Hague  Convention  of  1907  with  Regard  to  the  Conversion 
of  Merchantmen  into  Warships 

Article  I 
A  merchant-ship  converted  into  a  warship  cannot  have  the 
rights  and  duties  appertaining  to  vessels  having  that  status 
unless  it  is  placed  under  the  direct  authority,  immediate  control, 
and  responsibihty  of  the  Power,  the  flag  of  which  it  flies. 

Article  II 
Merchant-ships  converted  into  war-ships  must  bear  the  ex- 
ternal marks  which  distinguish  the  war-ships  of  their  nationality. 

Article  III 
The  commander  must  be  in  the  service  of  the  State  and  duly 
commissioned  by  the  proper  authorities.    His  name  must  figure 
on  the  Hst  of  the  officers  of  the  fighting  fleet. 


238  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  IV 
The  crew  must  be  subject  to  military  discipline. 

Article  V 
Every  merchant-ship  converted  into  a  war-ship  is  bomid  to 
observe  in  its  operations  the  laws  and  customs  of  war. 

Article  VI 
A  belligerent  who  converts  a  merchant-ship  into  a  war-ship 
must,  as  soon  as  possible,  annomice  such  conversion  in  the  list 
of  its  war-ships. 

Article  VII 
The   provisions   of  the   present   Convention   do   not   apply 
except  between  Contracting  Powers,  and  then  only  if  all  the 
belligerents  are  parties  to  the  Convention, 

Note.  —  Articles  8-12  contain  the  provisions  in  respect  of  ratification, 
notification  and  registration,  which  are  to  be  found  in  Articles  4-8  of  the 
Convention  of  1907  relative  to  the  Opening  of  Hostilities  (see  No.  2  of 
Part  III,  page  178).  It  will  be  noticed  that  the  question  of  the  places  where 
the  conversion  may  be  effc^cted  is  left  untouched.  The  Contracting 
Powers  could  not  agree  about  it,  and  statcnl  in  the  preamble  that  it  remained 
outside  the  scope  of  the  Convention,  and  was  in  no  way  affected  by  the 
rules  laid  down.  The  point  at  issue  is  whether  conversion  can  be  per- 
mitted to  take  place  on  the  high  seas.  The  Naval  Conference  of  1908- 
1909  endeavoured  in  vain  to  settle  it.  Consequently  the  Declaration  of 
London,  which  was  (.lra^v^l  up  at  the  Conference,  is  silent  on  the  subject. 

13.    The  Hague  Convention  of  1907  with  Regard  to  the  Use 
of  Automatic  Submarine  Contact  Mines 

Article  1 
It  is  forbidden : 

1.  To  lay  unanchonMl  automatic  contact  mines,  unless  they 
be  so  constructed  as  to  l)ecome  harmless  one  hour  at  most 
after  the  person  who  laid  them  has  ceased  to  control  them ; 

2.  To  lay  anchored  automatic  contact  mines  which  do  not 
become  harmless  as  soon  as  they  have  broken  loose  from  their 
moorings; 


THE  LAW  OF  WAR  239 

3.  To  use  torpedoes  which  do  not  become  harmless  when  they 
have  missed  their  mark. 

Article  2 

The  laying  of  automatic  contact  mines  off  the  coast  and  ports 
of  the  enemy  with  the  sole  object  of  intercepting  commercial 
shipping,  is  forbidden. 

Article  3 

When  anchored  automatic  contact  mines  are  employed, 
every  possible  precaution  must  be  taken  for  the  security  of 
peaceful  shipping. 

The  belligerents  undertake  to  do  their  utmost  to  render  these 
mines  harmless  after  a  Umited  time  has  elapsed,  and,  should  the 
mines  cease  to  be  under  observation,  to  notify  the  danger  zones 
as  soon  as  military  exigencies  permit,  by  a  notice  to  mariners, 
which  must  also  be  communicated  to  the  Governments  through 
the  diplomatic  channel. 

Article  4 

Neutral  Powers  which  lay  automatic  contact  mines  off  their 
coasts  must  observe  the  same  rules  and  take  the  same  precau- 
tions as  are  imposed  on  belhgerents. 

The  neutral  Power  must  give  notice  to  mariners  in  advance 
of  the  places  where  automatic  contact  mines  have  been  laid. 
This  notice  must  be  communicated  at  once  to  the  Governments 
through  the  diplomatic  channel. 

Article  5 

At  the  close  of  the  war,  the  Contracting  Powers  undertake 
to  do  their  utmost  to  remove  the  mines  which  they  have  laid, 
each  Power  removing  its  own  mines. 

As  regards  anchored  automatic  contact  mines  laid  by  one  of 
the  belligerents  off  the  coast  of  the  other,  their  position  must 
be  notified  to  the  other  party  by  the  Power  which  laid  them, 
and  each  Power  must  proceed  with  the  least  possible  delay  to 
remove  the  mines  in  its  own  Avaters. 


240  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  6 
The  Contracting  Powers  which  do  not  at  present  own  per- 
fected mines  of  the  description  contemplated  in  the  present 
Convention,  and  which,  consequently,  could  not  at  present 
carry  out  the  rules  laid  down  in. Articles  1  and  3,  undertake  to 
convert  the  materiel  of  their  mines  as  soon  as  possible,  so  as 
to  bring  it  into  conformity  with  the  foregoing  requirements. 

Article  7 
The  provisions  of  the  present  Convention  do  not  apply  except 
between  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Note.  —  The  usual  provisions  as  to  ratification,  notification  and  acces- 
sion follow.  They  are  printed  in  No.  2  of  Part  IIL  But  in  this  case  further 
rules  are  laid  down.  Article  11  provides  that  "the  present  Convention 
shall  remain  in  force  for  seven  years";  and  Article  12  declares  that  the 
Contracting  Powers  will  reopen  the  matter  six  months  before  the  expira- 
tion of  this  period  "in  the  event  of  the  question  not  having  been  already 
taken  up  and  settled  by  the  Third  Peace  Conference."  The  Convention 
is  very  imperfect,  and  there  is  little  doubt  that  many  of  those  concerned  in 
drawing  it  up  were  ashamed  of  their  own  work.  They  agreed  to  com- 
promise after  compromise,  till  little  of  any  value  was  left. 

14.   The  Hague  Convention  of  1907  with  Regard  to  Bombard- 
ments by  Naval  Forces  in  Time  of  War 

Chapter  I  —  Bombardment  of  Undefended  Ports,  Towns, 
Villages,  Dwellings,  or  Buildings 

Article  1 

The  bombardment  by  naval  forces  of  undefended  ports, 
towns,  villages,  dwellings,  or  buildings  is  forljiddon. 

A  place  may  not  be  bombarded  solely  on  the  ground  that 
automatic  submarine  contact  mines  are  anchored  off  the  harbour. 

Article  2 
Military  works,   military   or   naval   establishments,   depots 
of  arms  or  war  material,  workshops  or  plant  which  could  be 
utilized  for  the  needs  of  the  hostile  fleet  or  army,  and  ships  of 


THE  LAW  OF  WAR  241 

war  in  the  harbour,  are  not,  however,  included  in  this  prohibi- 
tion. The  commander  of  a  naval  force  may  destroy  them  with 
artillery,  after  a  summons  followed  by  a  reasonable  interval  of 
time,  if  all  other  means  are  impossible,  and  when  the  local 
authorities  have  not  themselves  destroyed  them  within  the 
time  fixed. 

The  commander  incurs  no  responsibility  for  any  unavoid- 
able damage  which  may  be  caused  by  a  bombardment  under 
such  circumstances. 

If  for  military  reasons  immediate  action  is  necessary,  and 
no  delay  can  be  allowed  to  tiie  enemy,  it  is  nevertheless  under- 
stood that  the  prohibition  to  bombard  the  undefended  town 
holds  good,  as  in  the  case  given  in  the  first  paragraph,  and  the 
commander  shall  take  all  due  measures  in  order  that  the  town 
may  suffer  as  little  harm  as  possible. 

Article  3 

After  due  notice  has  been  given,  the  bombardment  of  un- 
defended ports,  towns,  villages,  dwellings,  or  buildings  may 
be  commenced,  if  the  local  authorities,  on  a  formal  summons 
being  made  to  them,  decline  to  comply  with  requisitions  for 
provisions  or  supplies  necessary  for  the  immediate  use  of  the 
naval  force  before  the  place  in  question. 

Such  requisitions  shall  be  proportional  to  the  resources  of  the 
place.  They  shall  only  be  demanded  in  the  name  of  the  com- 
mander of  the  said  naval  force,  and  they  shall,  as  far  as  possible, 
be  paid  for  in  ready  money;   if  not,  receipts  shall  be  given. 

Article  4 
The   bombardment   of   undefended    ports,    towns,    villages, 
dwellings,  or  buildings,  on  account  of  failure  to  pay  money 
contributions,  is  forbidden. 

Chapter  II  —  General  Provisions 
Article  5 
In  bombardments  by  naval  forces  all  necessary  steps  must 
be  taken  by  the  commander  to  spare  as  far  as  possible  buildings 


242  DOCUMENTS  ON  INTERNATIONAL  LAW 

dedicated  to  public  worship,  art,  science,  or  charitable  purposes, 
historic  monuments,  hos])itals,  and  places  where  the  sick  or 
wound(>d  an^  collected,  provided  that  they  are  not  used  at  the 
time  for  military  purposes. 

It  is  the  duty  of  the  inhabitants  to  indicate  such  monuments, 
edifices,  or  places  by  visible  signs,  which  shall  consist  of  large 
stiff  rectangular  panels  divided  diagonally  into  two  painted 
triangular  portions,  the  upper  portion  l)lack,  the  lower  portion 
white. 

Article  6 

Unless  military  exigencies  render  it  impossible,  the  officer 
in  conmiand  of  an  attacking  naval  force  must,  before  com- 
mencing the  bombarchnent,  do  all  in  his  power  to  warn  the 
authorities. 

Article  7 

The  giving  over  to  pillage  of  a  town  or  place,  even  when 
taken  by  assault,  is  forbidden. 

Chapter  III  —  Final  Provisions 

Article  VIII 
The  provisions  of  the  present  Convention  do  not  apply  except 
between  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Note.  —  Articles  9-13  which  follow  set  forth  the  usual  rules  as  to  ratifi- 
cation, notification  etc.,  which  may  be  found  at  the  end  of  No.  2  of  Part  111. 

15.   The  Hague  Declaration  of  1907  prohibiting  the  Discharge 
of  Projectiles  and  Explosives  from  Balloons 

The  Undersigned,  Plenipotentiaries  of  the  Powers  invited  to 
the  Second  International  Peace  Conference  at  The  Hague,  duly 
authorized  to  that  effect  by  their  Governments,  inspired  by  the 
sentiments  which  found  expression  in  the  D(H'laration  of  St. 
Petersburg  of  the  29th  November  (llth  Dec(>mber),  1868,  and 
being  desii-ous  of  renewing  the  Declaration  of  The  Hague  of  the 
29th  July,  1899,  which  has  now  expired, 


THE  LAW  OF  WAR  243 

Declare : 

The  Contracting  Powers  agree  to  prohibit,  for  a  period  extend- 
ing to  the  close  of  the  Third  Peace  Conference,  the  discharge  of 
projectiles  and  explosives  from  balloons  or  by  other  new  methods 
of  a  similar  nature. 

The  present  Declaration  is  only  binding  on  the  Contracting 
Powers  in  case  of  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  moment  when,  in  a  war 
between  the  Contracting  Powers,  one  of  the  belligerents  is 
joined  by  a  non-Contracting  Power. 

The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  Protocol  shall  be  drawn  up  recording  the  receipt  of  the 
ratifications  of  which  a  duly  certified  copy  shall  be  sent,  through 
the  diplomatic  channel,  to  all  the  Contracting  Powers. 

Non-Signatory  Powers  may  accede  to  the  present  Declara- 
tion. To  do  so,  they  must  make  known  their  accession  to  the 
Contracting  Powers  by  means  of  a  written  notification,  addressed 
to  the  Netherland  Government,  and  communicated  by  it  to  all 
the  other  Contracting  Powers. 

In  the  event  of  one  of  the  High  Contracting  Parties  denounc- 
ing  the    present    Declaration,    such    denunciation    shall    only 
operate  on  the  expiry  of  one  year  after  the  notification  made 
in  writing  to  the  Netherland  Government,  and  forthwith  com 
municated  by  it  to  all  the  other  Contracting  Powers. 

This  denunciation  shall  only  operate  in  respect  of  the  denounc- 
ing Power. 

Note.  —  Of  the  six  Great  Powers  of  Europe  only  two,  Great  Britain 
and  Austria-Hungary,  have  signed  this  Declaration.  Of  the  great  mili- 
tary Powers  of  the  world  only  one,  Austria-Hungary,  has  signed  it. 
Since  it  is  not  binding  unless  both  sides  in  a  war  have  accepted  it,  there 
will  be  few  conflicts  on  land  in  which  it  has  any  chance  of  observance. 
Moreover  the  vast  advances  made  in  the  art  of  aerial  navigation  since 
1907,  and  their  general  adoption  for  military  and  naval  purposes,  have 
sensibly  diminished  whatever  prospect  there  was  of  rescuing  the  air  from 
the  domain  of  destruction.  The  best  that  can  be  hoped  for  in  present 
circumstances  is  the  exemption  of  undefended  places  from  a  rain  of  pro- 
jectiles coming  out  of  the  air-space  above  them. 


244  DOCUMENTS  ON  INTERNATIONAL  LAW 

16.   The  Declaration  of  St.  Petersburg,  1868 

Considering  that  the  progress  of  civilization  should  have 
the  effect  of  alleviating  as  much  as  possible  the  calamities  of 
war; 

That  not  only  legitimate  object  which  States  should  endeavour 
to  accomplish  during  war  is  to  weaken  the  military  forces  of  the 
enemy ; 

That  for  this  purpose  it  is  sufficient  to  disable  the  greatest 
possible  number  of  men; 

That  this  object  would  be  exceeded  by  the  employment  of 
arms  which  uselessly  aggravate  the  sufferings  of  disabled  men, 
or  render  their  death  inevitable; 

That  the  employment  of  such  arms  would,  therefore,  be 
contrary  to  the  laws  of  humanity; 

The  Contracting  Parties  engage  mutually  to  renounce,  in 
case  of  war  among  themselves,  the  employment  by  their  mili- 
tary or  naval  troops  of  any  projectile  of  a  weight  below  400 
grammes  (14  ounces)  which  is  either  explosive  or  charged  with 
fulminating  or  inflammable  substances. 

They  will  invito  all  the  States  which  have  not  taken  part 
in  the  deliberations  of  the  International  Military  Commission 
assembled  at  St.  Petersburg,  by  sending  Delegates  thereto,  to 
accede  to  the  present  engagement. 

This  engagement  is  obligatory  only  upon  the  Contracting  or 
Acceding  Parties  thereto,  in  case  of  war  between  two  or 
more  of  themselves;  it  is  not  applicable  with  regard  to 
non-Contracting  Parties  or  Parties  who  shall  not  have  acceded 
to  it. 

It  will  also  cease  to  be  obligatory  from  the  moment  when, 
in  a  war  between  Contracting  or  Acceding  Parties,  a  non- 
Contracting  Party  or  a  non- Acceding  Party  shall  join  one  of 
the  belligerents. 

The  Contracting  or  Acceding  Parties  reserve  to  themselves 
to  come  hereafter  to  an  understanding  whenever  a  precise  pro- 
position shall  be  drawn  up  in  view  of  future  improvements 
which  science  may  effect  in  the  armament  of  troops,  in  order  to 


THE  LAW  OF  WAR  245 

maintain  the  principles  which  they  have  estabhshed,  and  to 
concihate  the  necessities  of  war  with  the  laws  of  humanity. 

17.   Hague  Convention  of  1907  for  the  Pacific  Settlement  of 
International  Disputes 

Part  I  —  The  Maintenance  of  General  Peace 

Article  1 

With  a  view  of  obviating  as  far  as  possible  recourse  to  force 
in  the  relations  between  States,  the  Contracting  Powers  agree 
to  use  their  best  efforts  to  ensure  the  pacific  settlement  of 
international  differences. 

Part  II  —  Good  Offices  and  Mediation 

Article  2 
In  case  of  serious  disagreement  or  dispute,  before  an  appeal 
to  arms,  the  Contracting  Powers  agree  to  have  recourse,  as 
far  as  circumstances  allow,  to  the  good  offices  or  mediation  of 
one  or  more  friendly  Powers. 

Article  3 

Independently  of  this  recourse,  the  Contracting  Powers 
deem  it  expedient  and  desirable  that  one  or  more  Powers, 
strangers  to  the  dispute,  should,  on  their  own  initiative  and  as 
far  as  circumstances  may  allow,  offer  their  good  offices  or  media- 
tion to  the  States  at  variance. 

Powers  strangers  to  the  dispute  have  the  right  to  offer  good 
offices  or  mediation  even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  either  of 
the  contending  parties  as  an  unfriendly  act. 

Article  4 

The  part  of  the  mediator  consists  in  reconciling  the  oppos- 
ing claims  and  appeasing  the  feelings  of  resentment  which  may 
have  arisen  between  the  States  at  variance. 


246  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  5 

The  duties  of  the  mediator  are  at  an  end  when  once  it  is 
declared,  either  by  one  of  the  contending  parties  or  by  the 
mediator  himself,  that  the  means  of  reconciliation  proposed 
by  him  are  not  accepted. 

Article  6 

Good  offices  and  mediation  undertaken  either  at  the  request 
of  the  contending  parties  or  on  the  initiative  of  Powers  strangers 
to  the  dispute  have  exclusively  the  character  of  advice,  and 
never  have  binding  force. 

Article  7 

The  acceptance  of  mediation  cannot,  in  default  of  agreement 
to  the  contrary,  have  the  effect  of  interrupting,  delaying, 
or  hindering  mobilization  or  other  measures  of  preparation 
for  war. 

If  mediation  takes  place  after  the  commencement  of  hostili- 
ties, the  military  operations  in  progress  are  not  interrupted, 
in  default  of  agreement  to  the  contrary. 

Article  8 

The  Contracting  Powers  are  agreed  in  recommending  the 
application,  when  circumstances  allow,  of  special  mediation  in 
the  following  form: 

In  case  of  a  serious  difference  endangering  peace,  the  States 
at  variance  choose  respectively  a  Power,  to  which  they  entrust 
the  mission  of  entering  into  direct  communication  with  the 
Power  chosen  on  the  other  side,  with  the  object  of  preventing 
the  rupture  of  pacific  relations. 

For  the  period  of  this  mandate,  the  term  of  which,  in  default 
of  agreement  to  the  contrary,  may  not  exceed  thirty  days, 
the  contending  States  cease  from  all  direct  communication  on 
the  subject  of  the  dispute,  which  is  regarded  as  referred  exclu- 
sively to  the  mediating  Powers.  These  Powers  shall  use  their 
best  efforts  to  ecttle  the  dispute. 


THE  LAW  OF  WAR  247 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers 
remain  jointly  charged  with  the  task  of  taking  advantage  of 
any  opportunity  to  restore  peace. 

Part  III  —  International  Commissions  of  Inquiry 

Article  9 

In  disputes  of  an  international  nature  involving  neither 
honour  nor  vital  interests,  and  arising  from  a  difference  of 
opinion  on  points  of  fact,  the  Contracting  Powers  deem  it 
expedient  and  desirable  that  the  parties  who  have  not  been 
able  to  come  to  an  agreement  by  means  of  diplomacy,  should, 
as  far  as  circumstances  allow,  institute  an  International  Com- 
mission of  Inquiry,  to  facilitate  a  solution  of  these  disputes  by 
elucidating  the  facts  by  means  of  an  impartial  and  conscien- 
tious investigation. 

Article  10 

International  Commissions  of  Inquiry  are  constituted  by 
special  agreement  between  the  contending  parties. 

The  Inquiry  Convention  defines  the  facts  to  be  examined; 
it  determines  the  manner  and  period  within  which  the  Com- 
mission is  to  be  formed  and  the  extent  of  the  powers  of  the 
Commissioners. 

It  also  determines,  if  there  is  occasion  for  it,  where  the  Com- 
mission is  to  meet,  and  whether  it  may  remove  to  another  place, 
the  language  the  Commission  shall  use  and  the  languages  the 
use  of  which  shall  be  authorized  before  it,  as  well  as  the  date 
on  which  each  party  must  deposit  its  statement  of  facts,  and, 
generally  speaking,  all  the  conditions  upon  which  the  parties 
have  agreed. 

If  the  parties  consider  it  necessary  to  appoint  Assessors, 
the  Inquiry  Convention  shall  determine  the  mode  of  their 
selection  and  the  extent  of  their  powers. 

Article  11 
If  the  Inquiry  Convention  has  not  determined  where  the 
Commission  is  to  meet,  it  shall  meet  at  The  Hague. 


248  DOCUMENTS  ON  INTERNATIONAL  LAW 

The  place  of  meeting,  once  fixed,  caunot  be  altered  by  the 
Commission  except  with  the  assent  of  the  Parties. 

Unless  the  Inquiry  Convention  has  specified  the  languages 
to  be  employed,  the  question  shall  be  decided  by  the  Commission. 

Article  12 

In  default  of  agreement  to  the  contrary,  Commissions  of 
Inquiry  shall  be  formed  in  the  manner  determined  by  Articles 
45  and  57  of  the  present  Convention. 

Article  13 

Should  one  of  the  Commissioners  or  one  of  the  Assessors, 
should  there  be  any,  either  die,  resign,  or  be  unable  for  any 
reason  whatever  to  act,  the  same  procedure  is  followed  in 
filling  his  place  which  was  followed  in  appointing  him. 

Article  14 

The  parties  are  entitled  to  appoint  special  agents  to  attend 
the  Commission  of  Inquiry,  whose  duty  it  is  to  represent  them 
and  to  act  as  intermediaries  betw'een  them  and  the  Commission. 

They  are  further  authorized  to  engage  counsel  or  advocates, 
appointed  by  themselves,  to  state  their  case  and  uphold  their 
interests  before  the  Commission. 

Article  15 

The  International  Bureau  of  the  Permanent  Court  of  Arbi- 
tration acts  as  registry  for  the  Commissions  which  sit  at  The 
Hague,  and  shall  place  its  offices  and  staff  at  the  disposal  of  the 
Contracting  Powers  for  the  use  of  the  Commission  of  Inquiry. 

Article  16 

If  the  Commission  meets  elsewhere  than  at  The  Hague,  it 
appoints  a  Secretary-General,  whose  office  serves  as  registry. 

It  is  the  function  of  the  registry,  under  the  control  of  the 
President,  to  make  the  necessary  arrangements  for  the  sittings 


THE  LAW  OF  WAR  249 

of  the  Commission,  the  preparation  of  the  Minutes,  and,  while 
the  inquiry  lasts,  for  the  custody  of  the  archives,  which  shall 
subsequently  be  transferred  to  the  International  Bureau  at 
The  Hague. 

Article  17 

In  order  to  facilitate  the  constitution  and  working  of  Com- 
missions of  Inquiry,  the  Contracting  Powers  recommend  the 
following  rules,  which  shall  be  applicable  to  the  inquiry  pro- 
cedure in  so  far  as  the  parties  do  not  adopt  other  rules. 

Article  18 

The  Commission  shall  settle  the  details  of  the  procedure  not 
covered  by  the  special  Inquirj^  Convention  or  the  present  Con- 
vention and  shall  arrange  all  the  formalities  required  for  dealing 
with  the  evidence. 

Article  19 

On  the  inquiry  both  sides  must  be  heard.  At  the  dates  fixed, 
each  party  communicates  to  the  Commission  and  to  the  other 
party  the  statements  of  facts,  if  any,  and,  in  all  cases,  the 
instruments,  papers,  and  documents  which  it  considers  useful 
for  ascertaining  the  truth,  as  well  as  the  list  of  witnesses  and 
experts  whose  evidence  it  wishes  to  be  heard. 

Article  20 

The  Commission  is  entitled,  with  the  assent  of  the  parties, 
to  move  temporarily  to  any  place  where  it  considers  it  may  be 
useful  to  have  recourse  to  taking  evidence  by  this  means,  or  to 
send  thither  one  or  more  of  its  members.  Permission  must  be 
obtained  from  the  State  on  the  territory  of  which  evidence  has 
to  be  taken  in  this  way. 

Article  21 

Every  ascertainment  of  facts,  and  every  investigation  on 
the  spot,  must  be  made  in  the  presence  of  the  agents  and  counsel 
of  the  parties  or  after  they  have  been  duly  summoned. 


250  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  22 

The  Commission  is  entitled  to  ask  from  either  party  for 
such  explanations  and  information  as  it  thinks  fit. 

Article  23 

The  parties  undertake  to  afford  to  the  Commission  of  Inquiry, 
within  the  widest  limits  they  may  think  practicable,  all  the 
means  and  facilities  necessary  to  enable  it  to  become  com- 
pletely acquainted  with,  and  to  accurately  understand,  the 
facts  at  issue. 

They  undertake  to  make  use  of  the  means  at  their  disposal 
under  their  municipal  law,  to  secure  the  appearance  of  the 
witnesses  or  experts  who  are  in  their  territory  and  have  been 
summoned  before  the  Commission. 

If  the  witnesses  or  experts  are  unable  to  appear  before  the 
Commission,  the  parties  shall  arrange  for  their  evidence  to  be 
taken  before  the  qualified  officials  of  their  own  country. 

Article  24 

For  the  service  of  all  notices  by  the  Commission  in  the  terri- 
tory of  a  third  Contracting  Power,  the  Commission  shall  apply 
direct  to  the  Government  of  such  Pow(t.  The  same  principle 
applies  in  the  case  of  steps  being  taken  on  the  spot  in  order  to 
procure  (evidence. 

Requests  for  this  purpose  are  to  ])e  executed  so  far  as  the 
means  which  the  Power  applied  to  possesses  under  municipal 
law,  allow.  They  cannot  be  rejected  unless  the  Power  in  (jues- 
tion  considers  they  are  calculated  to  impair  its  sovereign  rights 
or  its  safety. 

The  Commission  will  also  be  entitled  in  all  cases  to  have 
recourse  to  the  intervention  of  the  Power  on  the  territory  of 
which  it  meets. 

Article  25 

The  witnesses  and  experts  are  summoned  on  the  request  of 
the  parties  or  by  the  Commission  of  its  own  motion,  and,  in 


THE  LAW  OF  WAR  251 

every  case,  through  the  Government  of  the  State  in  the  terri- 
tory of  which  they  are. 

The  witnesses  are  heard  in  succession  and  separately,  in  the 
presence  of  the  agents  and  counsel,  and  in  the  order  fixed  by 
the  Commission. 

Article  26 

The  examination  of  witnesses  is  conducted  by  the  President. 

The  members  of  the  Commission  may  however  put  to  each 
witness  questions  which  they  consider  likely  to  throw  light  on 
and  complete  his  evidence,  or  elicit  information  on  any  point 
concerning  the  witness  within  the  limits  of  what  is  necessary 
in  order  to  get  at  the  truth. 

The  agents  and  counsel  of  the  parties  may  not  interrupt  the 
witness  when  he  is  making  his  statement,  nor  put  any  direct 
question  to  him,  but  they  may  ask  the  President  to  put  such 
additional  questions  to  the  witness  as  they  think  expedient. 

Article  27 

The  witness  must  give  his  evidence  without  being  allowed 
to  read  any  written  proof.  He  may,  however,  be  permitted  by 
the  President  to  consult  notes  or  documents  if  the  nature  of  the 
facts  referred  to  necessitates  their  employment. 

Article  28 

A  Minute  of  the  evidence  of  the  witness  is  drawn  up  forthwith 
and  read  to  the  witness.  The  latter  may  make  such  altera- 
tions and  additions  as  he  thinks  necessary,  which  shall  be 
recorded  at  the  end  of  his  statement. 

When  the  whole  of  his  statement  has  been  read  to  the  witness, 
he  is  required  to  sign  it. 

Article  29 

The  agents  are  authorized  in  the  course  of  or  at  the  close 
of  the  inquiry,  to  present  in  writing  to  the  Commission  and  to 
the  other  party  such  statements,  requisitions,  or  summaries  of 
the  facts  as  they  consider  useful  for  ascertaining  the  truth. 


252  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  SO 

The  Commission  considers  its  decisions  in  private  and  the 
proceedings  remain  secret. 

All  questions  are  decided  by  a  majority  of  the  members  of 
the  Commission. 

If  a  member  declines  to  vote,  the  fact  must  be  recorded  in 
the  Minutes. 

Article  31 

The  sittings  of  the  Commission  are  not  public,  nor  are  the 
Minutes  and  documents  connected  with  the  inquiry  published, 
except  in  virtue  of  a  decision  of  the  Commission  taken  with  the 
consent  of  the  parties. 

Article  32 

After  the  parties  have  presented  all  the  explanations  and 
evidence,  and  the  witnesses  have  all  been  heard,  the  President 
declares  the  inquiry  terminated,  and  the  Commission  adjourns 
to  deliberate  and  to  draw  up  its  Report. 

Article  33 

The  Report  is  signed  by  all  the  members  of  the  Commission. 
If  one  of  the  members  refuse  to  sign,  the  fact  is  mentioned 
but  the  validity  of  the  Report  is  not  affected. 

Article  34 

The  Report  of  the  Commission  is  read  in  open  Court,  the 
agents  and  counsel  of  the  parties  being  present  or  duly  sum- 
moned to  attend. 

A  copy  of  the  Report  is  furnished  to  each  party. 

Article  35 

The  Report  of  the  Commission,  being  limited  to  a  finding 
of  fact,  has  in  no  way  the  character  of  an  Arbitral  Award.  It 
leaves  to  the  parties  entire  freedom  as  to  the  effect  to  be  given 
to  the  finding. 


THE  LAW  OF  WAR  253 

Article  36 

Each  party  pays  its  own  expenses  and  an  equal  share  of  the 
expenses  of  the  Commission. 

Part  IV  —  International  Arbitration 
Chapter  I  —  The  System  of  Arbitration 

Article  37 

International  arbitration  has  for  its  object  the  settlement  of 
disputes  between  States  by  Judges  of  their  own  choice  and  on 
the  basis  of  respect  for  law. 

Recourse  to  arbitration  implies  an  engagement  to  submit  in 
good  faith  to  the  Award. 

Article  38 

In  questions  of  a  legal  nature,  and  especially  in  the  interpre- 
tation or  appHcation  of  International  Conventions,  arbitra- 
tion is  recognized  by  the  Contracting  Powers  as  the  most 
equitable  means  of  arranging  disputes  which  diplomacy  has 
failed  to  settle. 

Consequently,  it  would  be  desirable  that,  in  disputes  regard- 
ing the  above-mentioned  questions,  the  Contracting  Powers 
should,  in  that  case,  have  recourse  to  arbitration,  in  so  far  as 
circumstances  permit. 

Article  39 

The  Arbitration  Convention  is  concluded  for  questions  already 
existing  or  for  questions  which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain 
category. 

Article  Jfi 

Independently  of  general  or  particular  Treaties  expressly 
stipulating  recourses  to  arbitration  as  obligatory  on  the 
Contracting  Powers,  the  said  Powers  reserve  to  themselves 
the  right  of  concluding  new  Agreements,  general  or  parti- 
cular, with  a  view  of  extending  obligatory  arbitration  to  all 


254  DOCUMENTS  ON  INTERNATIONAL  LAW 

cases  which  they  may  consider  it  possible  to  submit  to  such 
arbitration. 

Chapter  II  —  The  Permanent  Court  of  Arbitration 

Article  41 

With  the  object  of  facilitating  an  immediate  recourse  to 
arbitration  for  international  differences,  which  it  has  not  been 
possible  to  settle  by  diplomac}',  the  Contracting  Powers  un- 
dertake to  maintain  the  Permanent  Court  of  Arbitration,  as 
established  by  the  First  Peace  Conference,  accessible  at  all 
times,  and  acting,  in  default  of  agreement  to  the  contrary 
between  the  parties,  in  accordance  with  the  rules  of  procedure 
inserted  in  the  present  Convention. 

Article  Ji2 

The  Permanent  Court  can  deal  with  all  arbitration  cases, 
unless  the  parties  agree  to  institute  a  special  Tribunal. 

Article  43 

The  seat  of  the  Permanent  Court  is  at  The  Hague. 

An  International  Bureau  serves  as  registry  for  the  Court. 
It  is  the  channel  for  communications  relative  to  the  meetings 
of  the  Court;  it  has  the  custody  of  the  archives  and  conducts 
all  the  administrative  business. 

The  Contracting  Powers  undertake  to  communicate  to  the 
Bureau,  as  soon  as  possible,  a  duly  certified  copy  of  any  arbi- 
tration agreement  arrived  at  between  them  and  of  any  Award 
concerning  them  delivered  by  a  special  Tribmial. 

They  likewise  undertake  to  communicate  to  the  Bureau  the 
laws  regulations,  and  documents  indicating  the  execution,  in 
due  course,  of  the  Awards  given  by  the  Court. 

Article  44 

Each  Contracting  Power  selects  four  persons  at  the  most,  of 
known  competence  in  questions  of  International  Law,  of  the 


THE  LAW  OF  WAR  255 

highest  moral  reputation,  and  disposed  to  accept  the  duties  of 
Arbitrator. 

The  persons  thus  selected  are  inscribed  as  members  of  the 
Court,  in  a  list  which  shall  be  notified  to  all  the  Contracting 
Powers  by  the  Bureau. 

Any  alteration  in  the  hst  of  Arbitrators  is  brought  by  the 
Bureau  to  the  knowledge  of  the  Contracting  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common 
of  one  or  more  members. 

The  same  person  may  be  selected  by  different  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six 
years.    Their  appointments  can  be  renewed. 

Should  a  member  of  the  Court  die  or  resign,  the  same  pro- 
cedure is  followed  in  filling  his  place  which  was  followed  in 
appointing  him.  In  this  case  the  appointment  is  made  for  a 
fresh  period  of  six  years. 

Article  45 

When  the  Contracting  Powers  wish  to  have  recourse  to  the 
Permanent  Court  for  the  settlement  of  a  difference  which  has 
arisen  between  them,  the  Arbitrators  called  upon  to  form  the 
Tribunal  which  .shall  decide  this  difference  must  be  chosen  from 
the  general  list  of  members  of  the  Court. 

Failing  the  composition  of  the  Arbitration  Tribunal  by  direct 
agreement  between  the  parties,  the  following  course  shall  be 
pursued :  — 

Each  party  appoints  two  Arbitrators,  of  whom  one  only  may 
'  belong  to  its  own  nation  or  be  chosen  from  among  the  persons 
selected  by  it  as  members  of  the  Permanent  Court.  These 
Arbitrators  together  choose  an  Umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  Umpire  is 
intrusted  to  a  third  Power,  selected  by  agreement  between  the 
parties. 

If  an  agreement  is  not  arrived  at  on  this  subject  each  party 
selects  a  different  Power,  and  the  choice  of  the  Umpire  is  made 
in  concert  by  the  Powers  thus  selected. 

If,  within  two  months'  time,  these  two  Powers  cannot  come 


256  DOCUMENTS  ON  INTERNATIONAL  LAW 

to  an  agreement,  each  of  them  presents  two  candidates  taken 
from  the  list  of  members  of  the  Permanent  Court,  exclusive  of 
the  members  selected  by  the  parties  and  not  belonging  to  the 
nation  of  either  of  them.  Which  of  the  candidates  thus  pre- 
sented shall  bo  l^mpire  is  determined  by  lot. 

Article  Jf6 

As  soon  as  the  Tribunal  has  been  constituted,  the  parties 
notify  to  the  Bureau  their  determination  to  have  recourse  to 
the  Court,  the  text  of  their  Compromis  (see  Article  52),  and 
the  names  of  the  Arbitrators. 

The  Bureau  communicates  without  delay  to  each  Arbitrator 
the  Compromis,  and  the  names  of  the  other  members  of  the 
Tribunal. 

The  Tribunal  assembles  at  the  date  fixed  by  the  parties. 
The  Bureau  makes  the  necessary  arrangements  for  the  meeting. 

The  members  of  the  Tribunal,  in  the  performance  of  their 
duties  and  when  outside  their  own  country,  enjoy  diplomatic 
privileges  and  immunities. 

Article  47 

The  Bureau  is  authorized  to  place  its  office  and  staff  at  the 
disposal  of  the  Contracting  Powers  for  the  use  of  any  special 
body  of  Arbitrators. 

The  jurisdiction  of  the  Permanent  Court  may,  within  the 
conditions  laid  down  in  the  regulations,  be  extended  to  disputes 
between  non-Contracting  Powers  or  between  Contracting  Powers 
and  non-Contracting  Powers,  if  the  parties  are  agreed  to  have 
recourse  to  the  Court. 

Article  48 

The  Contracting  Powers  consider  it  their  duty,  if  an  acute 
conflict  threatens  to  arise  between  two  or  more  of  them,  to 
remind  such  Powers  that  the  Permanent  Court  is  open  to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the 
parties  at  variance  of  the  pro\asions  of  the  present  Convention 
and  the  advice  given  to  them,  in  the  highest  interests  of  peace, 


THE  LAW  OF  WAR  257 

to  have  recourse  to  the  Permanent  Court,  can  only  be  regarded 
as  in  the  nature  of  good  offices. 

In  case  of  dispute  between  two  Powers  one  of  them  may 
always  address  to  the  International  Bureau  a  note  containing  a 
declaration  that  it  would  be  ready  to  submit  the  dispute  to  the 
arbitration. 

The  Bureau  must  at  once  inform  the  other  Power  of  the 
declaration. 

Article  Jj9 

The  Permanent  Administrative  Council,  composed  of  the 
Diplomatic  Representatives  of  the  Contracting  Powers  accred- 
ited to  The  Hague  and  of  the  Netherland  Minister  for  Foreign 
Affairs  who  acts  as  President,  is  charged  ^vith  the  direction  and 
control  of  the  International  Bureau. 

The  Council  settles  its  rules  of  procedure  and  all  other  neces- 
sary regulations. 

It  decides  all  questions  of  administration  which  may  arise 
with  regard  to  the  business  of  the  Court. 

It  has  entire  control  over  the  appointment,  suspension,  or 
dismissal  of  the  officials  and  employes  of  the  Bureau. 

It  fixes  the  payments  and  salaries,  and  controls  the  general 
expenditure. 

At  meetings  duly  summoned,  the  presence  of  nine  members 
is  sufficient  to  render  valid  the  discussions  of  the  Council. 
The  decisions  are  taken  by  a  majority  of  votes. 

The  Council  communicates  to  the  Contracting  Powers  with- 
out delay  the  regulations  adopted  by  it.  It  furnishes  them  with 
an  annual  Report  on  the  labours  of  the  Court,  the  working  of 
the  staff,  and  the  expenditure.  The  Report  likewise  contains 
a  summary  of  the  more  important  contents  of  the  documents 
communicated  to  the  Bureau  by  the  Powers  in  virtue  of  Article 
43,  paragraphs  3  and  4. 

Article  50 
The  expenses  of  the  Bureau  shall  be  borne  by  the  Contracting 
Powers  in  the  proportion  fixed  for  the  International  Bureau 
of  the  Universal  Postal  Union. 


258  DOCUMENTS  ON  INTERNATIONAL  LAW 

The  expenses  to  be  charged  to  the  acceding  Powers  shall  be 
reckoned  from  the  date  on  which  their  accession  takes  effect. 


Chapter  III  —  Arbitration  Procedure 

Article  51 
With  a  view  of  encouraging  the  development  of  arbitration, 
the  Contracting  Powers  have  agreed  on  the  following  rules, 
which  are  to  apply  to  arbitration  procedure  except  in  so  far  as 
other  rules  shall  have  been  agreed  on  by  the  parties. 

Article  52 

The  Powers  which  have  recourse  to  arbitration  sign  a  Com- 
promis,  in  which  the  subject  of  the  dispute  is  clearly  defined, 
the  time  allowed  for  appointing  Arbitrators,  the  form,  order, 
and  time  in  which  the  communication  referred  to  in  Article  63 
must  be  made,  and  the  amount  of  the*  sum  which  each  party 
must  deposit  in  advance  to  defray  the  expenses. 

The  Compromis  Ukewise  defines,  if  there  is  occasion  for  it, 
the  manner  of  appointing  Arbitrators,  any  special  powers  which 
may  eventually  belong  to  the  Tribunal,  the  place  of  meeting 
the  language  it  shall  use,  and  the  languages  the  employment 
of  which  shall  be  authorized  before  it,  and,  generally  speaking, 
all  the  conditions  on  which  the  parties  are  agreed. 

Article  53 

The  Permanent  Court  is  competent  to  settle  the  Compromis, 
if  the  parties  are  agreed  to  have  recourse  to  it  for  the  purpose. 

It  is  similarly  competent,  even  if  the  request  is  only  made 
by  one  of  the  parties,  when  all  attempts  to  reach  an  under- 
standing through  the  diplomatic  channel  have  failed,  in  the 
case  of :  — 

1.  A  dispute  covered  by  a  general  Treaty  of  Arbitration 
concluded  or  renewed  after  the  present  Convention  has  come 
into  force,  and  providing  for  a  Compromis  in  all  disputes  and 
not  either  expHcitly  or  imphcitly  excluding  the  settlement  of 
the  Compromis  from  the  competence  of  the  Court.     Recourse 


THE   LAW  OF  WAR  259 

cannot,  however,  be  had  to  the  Court  if  the  other  party  declares 
that  in  its  opinion  the  dispute  does  not  belong  to  the  category 
of  disputes  which  can  be  submitted  to  obhgatory  arbitration, 
unless  the  Treaty  of  Arbitration  confers  upon  the  Arbitration 
Tribunal  the  power  of  deciding  this  preliminary  question; 

2.  A  dispute  arising  from  contract  debts  claimed  from  one 
Power  by  another  Power  as  due  to  its  subjects  or  citizens,  and 
for  the  settlement  of  which  the  offer  of  arbitration  has  been 
accepted.  This  provision  is  not  apphcable  if  acceptance  is 
subject  to  the  condition  that  the  Compromis  should  be  settled 
in  some  other  way. 

Article  54 

In  the  cases  contemplated  in  the  preceding  Article,  the  Com- 
promis shall  be  settled  by  a  Commission  consisting  of  five 
members  selected  in  the  manner  laid  down  in  Article  45,  para- 
graphs 3  to  6. 

The  fifth  member  is  ex  officio  President  of  the  Commission. 

Article  55 

The  duties  of  Arbitrator  may  be  conferred  on  a  single  Arbi- 
trator or  on  several  Arbitrators  selected  by  the  parties  as  they 
please,  or  chosen  by  them  from  the  members  of  the  Permanent 
Court  of  Arbitration  estabhshed  by  the  present  Convention. 

Failing  the  composition  of  the  Tribunal  by  direct  agreement 
between  the  parties,  the  course  referred  to  in  Article  45,  para- 
graphs 3  to  6,  is  followed. 

Article  56 

When  a  Sovereign  or  the  Chief  of  a  State  is  chosen  as  Arbi- 
trator, the  arbitration  procedure  is  settled  by  him. 

Article  57 

The  Umpire  is  ex  officio  President  of  the  Tribunal. 
When  the  Tribunal  does  not  include  an  Umpire,  it  appoints 
its  own  President. 


260  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  58 
When  the  Compromis  is  settled  by  a  Commission,  as  con- 
templated in  Article  54,  and  in  default  of   agreement   to   the 
contrary,    the   Commission    itself  shall   form    the  Arbitration 
Tribunal. 

Article  59 
Should  one  of  the  Arbitrators  either  die,  resign,  or  be  unable 
for  any  reason  whatever  to  act,  the  same  procedure  is  followed 
in  filling  his  place  which  was  followed  in  appointing  him. 

Article  60 

The  Tribunal  meets  at  The  Hague,  unless  some  other  place 
is  selected  by  the  parties. 

The  Tribunal  may  only  meet  in  the  territory  of  a  third  Power 
with  the  latter 's  consent. 

The  place  of  meeting  once  fixed  cannot  be  altered  by  the 
Tribunal,  except  with  the  assent  of  the  parties. 

Article  61 
Unless  the  Compromis  has  specified  the  languages  to  be  em- 
ployed, the  question  shall  be  decided  by  the  Tribimal. 

Article  62 

The  parties  are  entitled  to  appoint  special  agents  to  attend 
the  Tribunal,  whose  duty  it  is  to  act  as  intermediaries  between 
themselves  and  the  Tribunal. 

They  are  further  authorized  to  retain  for  the  defence  of  their 
rights  and  interests  before  the  Tribunal  counsel  or  advocates 
appointed  by  them  for  the  purpose. 

The  members  of  the  Permanent  Court  may  not  act  as  agents, 
counsel,  or  advocates  except  on  behalf  of  the  Power  which  has 
appointed  them  members  of  the  Court. 

Article  63 
As  a  general  rule,  arbitration  procedure  comprises  two  dis- 
tinct phases:  written  pleadings  and  vivd  voce  discussions. 


THE  LAW  OF  WAR  261 

The  written  pleadings  consist  of  the  communication  by  the 
respective  agents  to  the  members  of  the  Tribunal  and  the  oppos- 
ing party,  of  cases,  counter-cases,  and,  if  necessary,  of  replies; 
the  parties  annex  thereto  all  papers  and  documents  referred  to 
in  the  cause.  This  communication  shall  be  made  either  directly 
or  through  the  intermediary  of  the  International  Bureau  in 
the  order  and  within  the  time  fixed  by  the  Compromis. 

The  time  fixed  by  the  Compromis  may  be  extended  by  mutual 
agreement  between  the  parties,  or  by  the  Tribunal  when  the 
latter  considers  it  necessary  for  the  purpose  of  reaching  a  just 
decision. 

The  discussions  consist  of  the  vivd  voce  arguments  of  the  parties 
before  the  Tribunal. 

Article  64 

A  duly  certified  copy  of  every  document  produced  by  one 
party  must  be  communicated  to  the  other  party. 

Article  65 

Unless  special  circumstances  arise,  the  Tribunal  does  not  meet 
until  the  pleadings  are  closed. 

Article  66 

The  discussions  are  under  the  directions  of  the  President. 

They  are  not  public  unless  it  be  so  decided  by  the  Tribunal, 
with  the  assent  of  the  parties. 

They  are  recorded  in  Minutes  drawn  up  by  the  Secretaries 
appointed  by  the  President.  These  Minutes  are  signed  by  the 
President,  and  by  one  of  the  Secretaries  and  are  the  only 
authentic  record. 

Article  67 

After  the  close  of  the  pleadings,  the  Tribunal  is  entitled  to 
exclude  from  the  discussion  all  fresh  papers  or  documents  which 
one  party  may  wish  to  submit  to  it  without  the  consent  of  the 
other. 


262  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  68 

The  Tribunal  is  free  to  take  into  consideration  fresh  papers 
or  documents  to  which  its  attention  may  be  drawn  by  the 
agents  or  counsel  of  the  parties. 

In  that  case,  the  Tribunal  has  the  right  to  require  the  pro- 
duction of  such  papers  or  documents,  but  is  obliged  to  make  them 
known  to  the  opposing  party. 

Article  69 
The  Tribunal  may  also  call  upon  the  agents  of  the  parties 
to  furnish  all  necessary  papers  and  explanations.    The  Tribunal 
takes  note  of  any  refusal. 

Article  70 
The  agents  and  the  counsel  of  the  parties  are  authorized  to 
present  verbally  to  the  Tribunal  all  the  arguments  they  may 
consider  expedient  in  support  of  their  case. 

Article  71 
They  are  entitled  to  raise  objections  and  points.     The  de- 
cisions of  the  Tribunal  thereon  are  final  and  cannot  form  the 
subject  of  any  subsequent  discussion. 

Article  72 

The  members  of  the  Tribunal  are  entitled  to  put  questions 
to  the  agents  and  counsel  of  the  parties,  and  to  ask  them  for 
explanations  on  doubtful  points. 

Neither  the  questions  put,  nor  the  remarks  made  by  members 
of  the  Tribunal  in  the  course  of  the  discussion,  are  to  be  regarded 
as  an  expression  of  opinion  by  the  Tribunal  as  a  whole  or  by  its 
members  in  particular. 

Article  73 
The  Tribunal  is  authorized  to  determine  its  own  competence 
in  interpreting  the  Compromis  as  well  as  the  other  Acts  and 
documents  Avhich  may  be  appealed  to  in  the  matter,  and  in 
applying  the  principles  of  law. 


THE  LAW  OF  WAR  263 

Article  74 

The  Tribunal  is  entitled  to  make  orders  of  procedure  for  the 
conduct  of  the  case,  to  decide  the  forms,  order,  and  time  in 
which  each  party  must  present  its  final  arguments,  and  to 
arrange  all  the  formalities  required  for  taking  evidence. 

Article  75 

The  parties  undertake  to  supply  the  Tribunal,  within  the 
widest  limits  they  may  think  practicable,  with  all  the  informa- 
tion required  for  deciding  the  dispute. 

Article  76 

For  the  service  of  all  notices  by  the  Tribunal  in  the  territory 
of  a  third  Contracting  Power,  the  Tribunal  shall  apply  direct 
to  the  Government  of  such  Power.  The  same  principle  shall 
apply  in  the  case  of  steps  being  taken  on  the  spot  in  order  to 
procure  evidence. 

Requests  for  this  purpose  are  to  be  executed  as  far  as  the 
means  which  the  Power  applied  to  possesses  under  mmiicipal 
law  allow.  They  cannot  be  rejected  unless  the  Power  in  ques- 
tion considers  them  Ukely  to  impair  its  sovereign  rights  or  its 
safety. 

The  Tribunal  will  also  be  entitled  in  all  cases  to  act  through 
the  Power  within  the  territory  of  which  it  meets. 

Article  77 

When  the  agents  and  counsel  of  the  parties  have  submitted 
all  the  explanations  and  evidence  in  support  of  their  case  the 
President  shall  declare  the  discussion  closed. 

Article  78 

The  Tribunal  considers  its  decisions  in  private  and  the  pro- 
ceedings remain  secret. 

All  questions  are  decided  by  a  majority  of  the  members  of 
the  Tribunal. 


264  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  79 

The  Award  must  state  the  reasons  on  which  it  is  based.  It 
recites  the  names  of  the  Arbitrators  and  is  signed  by  the  Presi- 
dent and  by  the  Registrar,  or  the  Secretary  acting  as  Registrar. 

Article  80 

The  Award  is  read  in  open  Court,  the  agents  and  counsel  of 
the  parties  being  present  or  duly  summoned  to  attend. 

Article  81 

The  Award,  duly  pronounced  and  notified  to  the  agents  of 
the  parties,  settles  the  dispute  definitely  and  without  appeal. 

Article  82 

Any  difference  arising  between  the  parties  as  to  the  interpre- 
tation and  execution  of  the  Award  shall,  in  default  of  agree- 
ment to  the  contrary,  be  submitted  to  the  decision  of  the 
Tribunal  which  pronounced  the  Award. 

Article  83 

The  parties  may  in  the  Compromis  reserve  the  right  to  demand 
the  revisioii  of  the  Award.  . 

In  that  case  and  in  default  of  agreement  to  the  contrary, 
the  demand  must  be  addressed  to  the  Tribunal  which  pronounced 
the  Award.  Such  demand  may  only  be  made  on  the  ground 
of  the  discovery  of  some  new  fact  which  is  calculated  to  exercise 
a  decisive  influence  upon  the  Award,  and  which,  at  the  time 
when  the  discussion  was  closed,  was  unknown  to  the  Tribunal 
and  to  the  party  demanding  revision. 

Proceedings  for  revision  can  only  be  instituted  on  a  decision 
of  the  Triljunal  expressly  recording  the  existence  of  the  new 
fact,  recognizing  in  it  the  character  described  in  the  preceding 
paragraph,  and  declaring  the  demand  admissible  on  this  ground. 

The  Compromis  fixes  the  period  within  which  the  demand  for 
revision  must  be  made. 


THE   LAW  OF  WAR  265 

Article  84 

The  Award  is  not  binding  except  on  the  parties  to  the  pro- 
ceedings. 

When  there  is  a  question  as  to  the  interpretation  of  a  Conven- 
tion of  which  other  Powers  are  signatories,  the  parties  to  the 
proceedings  shall  inform  all  the  Signatory  Powers  in  good  time. 
Each  of  these  Powers  is  entitled  to  intervene  in  the  proceeding. 
If  one  or  more  avail  themselves  of  the  right,  the  interpretation 
given  by  the  Award  is  equally  binding  on  them. 

Article  85 

Each  party  pays  its  own  expenses  and  an  equal  share  of  the 
expenses  of  the  Tribunal. 

Chapter  IV  —  Arbitration  by  Summary  Procedure 

Article  86 

With  a  view  of  facilitating  the  working  of  the  system  of 
arbitration  in  disputes  admitting  of  a  summary  procedure,  the 
Contracting  Powers  adopt  the  following  rules,  which  shall  be 
observed  in  the  absence  of  other  arrangements  and  with  the 
reservation  that  the  provisions  of  Chapter  III  apply  so  far  as 
they  are  not  inconsistent  with  these  rules. 

Article  87 

Each  of  the  contending  parties  appoints  an  Arbitrator.  The 
two  Arbitrators  thus  selected  choose  an  Umpire.  If  they  do 
not  agree  on  this  point,  each  of  them  proposes  two  candidates 
taken  from  the  general  list  of  the  members  of  the  Permanent 
Court  exclusive  of  the  members  appointed  by  either  of  the 
parties  and  not  being  of  the  nationality  of  either  of  them; 
which  of  the  candidates  thus  proposed  shall  be  the  Umpire  is 
then  determined  by  lot. 

The  Umpire  presides  over  the  Tribunal.  Decisions  are  given 
by  a  majority  of  votes. 


266  DOCUMENTS  ON   INTERNATIONAL  LAW 

Article  88 

In  default  of  previous  agreement,  the  Tribunal,  when  con- 
stituted, settles  the  time  within  which  the  two  parties  shall 
submit  their  respective  cases  to  it. 

Article  89 
Each  party  is  represented  before  the  Tribunal  by  an  agent, 
who  serves  as  intermediary   between  the  Tribunal  and  the 
Government  appointing  him. 

Article  90 
The  proceedings  are  conducted  exclusively  in  ^v^iting.  Each 
party,  however,  is  entitled  to  demand  the  calling  of  witnesses 
and  experts.  The  Tribunal,  on  its  part,  has  the  right  to  ask 
for  viva  voce  explanations  from  the  agents  of  the  two  parties, 
as  Avell  as  from  the  experts  and  witnesses  whose  appearance  in 
Court  it  may  consider  useful. 

Part  V  —  Final  Provisions 

Article  91 
The  present  Convention,  duly  ratified,  shall  replace,  as  be- 
tween the  Contracting  Powers,  the  Convention  for  the  Pacific 
Settlement  of  International  Disputes  of  the  29th  July,  1899. 

Article  92 

The  present  Convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  Pro- 
tocol signed  by  the  Representatives  of  the  Powers  which  take 
part  therein  and  by  the  Netherland  Minister  for  Foreign 
Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by 
means  of  a  written  notification,  addressed  to  the  Netherland 
Government  and  accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  Protocol  relating  to  the  first 


THE  LAW  OF  WAR  267 

deposit  of  ratifications,  of  the  notifications  mentioned  in  the 
preceding  paragraph,  and  of  the  instruments  of  ratification, 
shall  be  immediately  sent  by  the  Netherland  Government, 
through  the  diplomatic  channel,  to  the  Powers  invited  to  the 
Second  Peace  Conference,  as  well  as  to  the  other  Powers  which 
have  acceded  to  the  Convention.  The  said  Government  shall 
in  the  cases  contemplated  in  the  preceding  paragraph  inform 
them  at  the  same  time  of  the  date  on  which  it  received  the 
notification.    • 

Article  93 

Non-Signatory  Powers  which  have  been  invited  to  the 
Second  Peace  Conference  may  accede  to  the  present  Convention. 

A  Power  which  desires  to  accede  notifies  its  intention  in 
writing  to  the  Netherland  Government,  forwarding  to  it  the 
act  of  accession,  which  shall  be  deposited  in  the  archives  of  the 
said  Government. 

The  said  Government  shall  immediately  forward  to  all  the 
other  Powers  invited  to  the  Second  Peace  Conference  a  duly 
certified  copy  of  the  notification  as  well  as  of  the  act  of  acces- 
sion, mentioning  the  date  on  which  it  received  the  notification. 

Article  94 

The  conditions  on  which  the  Powers  not  invited  to  the 
Second  Peace  Conference  may  accede  to  the  present  Conven- 
tion shall  form  the  subject  of  a  subsequent  agreement  between 
the  Contracting  Powers. 

Article  95 

The  present  Convention  shall  take  effect,  in  the  case  of  the 
Powers  which  were  parties  to  the  first  deposit  of  ratifications, 
sixty  days  after  the  date  of  the  Protocol  recording  such  deposit, 
and,  in  the  case  of  the  Powers  which  shall  ratify  subsequently 
or  which  shall  accede,  sixty  days  after  the  notification  of  their 
ratification  or  of  their  accession  has  been  received  by  the 
Netherland  Government. 


268  DOCUMENTS  ON   INTERNATIONAL   LAW 

Article  96 

In  the  ovent  of  one  of  the  Contracting  Parties  wishing  to 
denounce  the  present  Convention,  the  denunciation  shall  be 
notified  in  writing  to  the  Netherland  Government,  which  shall 
immediat(>ly  communicate  a  duly  certified  copy  of  the  notifica- 
tion to  all  the  other  Powers  informing  them  of  the  date  on  which 
it  was  received. 

The  denunciation  shall  only  operate  in  respect  of  the  de- 
nouncing Power,  and  only  on  the  expiry  of  one  year  after  the 
notification  has  reached  the  Netherland  Government. 

Article  97 

A  register  kept  by  the  Netherland  Ministry  for  Foreign 
Affairs  shall  record  the  date  of  the  deposit  of  ratifications 
effected  in  virtue  of  Article  92,  paragraphs  3  and  4,  as  well  as 
the  date  on  which  the  notifications  of  accession  (Article  93, 
paragraph  2)  or  of  denunciation  (Article  96,  paragraph  1)  have 
been  received. 

Each  Contracting  Power  is  entitled  to  have  access  to  this 
register  and  to  be  supplied  with  duly  certified  extracts  from  it. 

In  faith  whereof  the  Plenipotentiaries  have  appended  their 
signatures  to  the  present  Convention. 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single 
original,  which  shall  remain  deposited  in  the  archives  of  the 
Netherland  Government,  and  of  which  duly  certified  copies 
shall  be  sent,  through  the  diplomatic  channel,  to  the  Contract- 
ing Powers. 

Note.  —  There  is  little  to  append  to  the  text^  of  this  Convention  unless 
a  treatise  on  it  were  added,  which  for  obvious  reasons  is  impossible  here. 
It  is,  however,  desirable  to  say  tluit,  if  there  is  a  general  acceptance  by  the 
powers  of  the  proposals  now  before  them  in  the  name  of  the  United  States 
of  America  (June,  1914),  a  new  and,  it  is  to  be  hoped,  potent  means  for 
the  peaceful  settlement  of  international  disputes  will  be  added  to  those 
already  in  existence. 

The  suggestion  was  made  by  Mr.  William  J.  Bryan,  the  United  States 
Secretary  of  State,  soon  after  his  accession  to  ofhce  in  1913.  He  proposed 
that  two  or  more  Powers  should  agree  among  themselves  to  refer  all  dis- 


THE  LAW  OF  WAR  269 

putes  they  could  not  settle  by  diplomatic  means  to  an  International 
Commission  for  investigation  and  report,  and  should  bind  themselves  not 
to  go  to  war  until  the  Report  of  the  Cornmission  had  been  received.  It 
was  further  suggested  that  a  year  should  be  granted  to  the  Commissioners 
for  the  exercise  of  their  functions,  and  that  during  this  period  the  parties 
to  the  dispute  should  not  make  any  increase  in  their  warUke  forces,  unless 
danger  from  a  third  power  was  threatened.  These  proposals  were  em- 
bodied in  a  treaty,  signed  on  August  7,  1913,  between  the  United  States 
and  the  Republic  of  Salvador;  and  this  treaty  was  but  the  first  of  a  series 
which  had  reached  to  nearly  a  dozen  by  the  end  of  the  year.  Each  Inter- 
national Commission  was  to  consist  of  five  members,  two  chosen  by  each 
of  the  disputing  Governments,  one  of  them  from  its  own  citizens  and  the 
other  from  a  third  country,  and  the  fifth  selected  by  common  agreement 
between  the  two  Governments.  Negotiations  are  still  going  on.  Most 
of  the  Powers  are  favourably  disposed;  though  there  is  a  disposition  in 
some  quarters  to  drop  the  mutual  promise  of  the  parties  not  to  increase 
their  naval  or  miUtary  forces  pending  the  preparation  of  the  Report  of 
the  Commission.  This  is  not  an  essential  part  of  the  plan.  The  great, 
things  are  to  obtain  an  impartial  Report,  and  to  secure  a  delay  for  passions 
to  cool.  These  things  being  gained,  few  states  would  go  to  war  in  cold 
blood  at  the  end  of  a  year,  with  a  document  staring  them  in  the  face, 
signed  by  their  own  Commissioners  and  recommending  a  peaceful  way 
out  of  the  dispute. 

18.    The  Hague  Convention  of  1907  respecting  the  Limitation  of 
the  Employment  of  Force  for  the  Recovery  of  Contract  Debts 

Article  1 

The  Contracting  Powers  agree  not  to  have  recourse  to  armed 
force  for  the  recovery  of  contract  debts  claimed  from  the 
Government  of  one  country  by  the  Government  of  another 
country  as  being  due  to  its  subjects  or  citizens. 

This  undertaking  is,  however,  not  apphcable  when  the  debtor 
State  refuses  or  neglects  to  reply  to  an  offer  of  arbitration,  or, 
after  accepting  the  offer  renders  the  settlement  of  the  Com- 
promis  impossible,  or,  after  the  arbitration,  fails  to  comply 
with  the  award. 

Article  2 

It  is  further  agreed  that  the  arbitration  mentioned  in  the 
second  paragraph  of  the  preceding  Article  shall  be  subject  to 
the  procedure  laid  down  in  Part  IV,  Chapter  3,  of  the  Conven- 


270  DOCUMENTS  ON  INTERNATIONAL  LAW 

tion  of  The  Hague  for  the  Pacific  Settlement  oi  International 
Disputes.  The  award  shall  determine,  except  where  other- 
wise agreed  between  the  parties,  the  validity  of  the  claim,  the 
amount  of  the  debt,  and  the  time  and  mode  of  payment. 

Note.  —  The  remaining  Articles  give  the  usual  provisions  about  ratifica- 
tion, denunciation,  etc.,  all  of  which  may  be  found  in  Part  III,  No.  2. 
The  Convention  has  an  importance  out  of  all  proportion  to  its  length.  It 
establishes  something  closely  resembling  obhgatory  arbitration  by  making 
the  freedom  of  the  debtor  state  from  armed  attack  on  the  part  of  the 
creditor  state  depend  upon  its  willingness  not  only  to  accept  arbitration, 
but  also  to  put  no  obstacle  in  its  way  when  accepted  and  to  carry  out  the 
award  when  given.  But  on  the  other  hand  it  leaves  the  creditor  state 
free  to  make  or  not  to  make  an  offer  of  arbitration,  as  it  pleases.  It  is 
probably  but  a  beginning,  which  may  end  in  some  system  of  compulsory 
procedure  before  an  International  Court  in  many  kinds  of  international 
disputes. 

19.   Draft  of  Hague  Convention  of  1907  concerning  the  Creation 
of  a  Judicial  Arbitration  Court 

Part  I  —  Constitution  of  the  Judicial 
Arbitration  Court 

Article  1 
With  the  view  of  promoting  the  cause  of  arbitration,  the 
Contracting  Powers  agree  to  constitute,  without  derogation  to 
the  Permanent  Court  of  Arbitration,  a  Judicial  Arbitration 
Court,  of  free  and  unrestricted  access,  composed  of  Judges 
representing  the  various  juridical  systems  of  the  world,  and 
capable  of  insuring  continuity  in  the  jurisprudence  of  arbi- 
tration. 

Article  2 

The  Judicial  Arbitration  Court  is  composed  of  Judges  and 
Deputy  Judges  chosen  from  persons  of  the  highest  moral 
reputation,  and  all  fulfilling  conditions  qualifying  them  in  their 
respective  countries,  to  occupy  high  legal  posts,  or  as  jurists 
of  recognized  competence  in  matters  of  International  Law. 

The  Judges  and  Deputy  Judges  of  the  Court  are  appointed, 
as  far  as  possible,  from  the  members  of  the  Permanent  Court  of 


THE  LAW  OF  WAR  271 

Arbitration.     The  appointment  shall  be  made  within  six  months 
after  the  ratification  of  the  present  Convention. 

Article  3 

The  Judges  and  Deputy  Judges  are  appointed  for  a  period 
of  twelve  years,  reckoned  from  the  date  on  which  the  appoint- 
ment is  notified  to  the  Administrative  Council  created  by  the 
Convention  for  the  Pacific  Settlement  of  International  Disputes. 
Their  appointments  can  be  renewed. 

Should  one  of  the  Judges,  or  Deputy  Judges  die  or  resign, 
the  same  procedure  is  followed  in  filling  the  vacancy  as  was 
followed  in  appointing  him.  In  this  case,  the  appointment  is 
made  for  a  fresh  period  of  twelve  years. 

Article  4 

The  Judges  of  the  Judicial  Arbitration  Court  are  equal 
amongst  themselves,  and  have  precedence  according  to  the  date 
of  the  notification  of  their  appointment.  The  Judge  who  is 
senior  in  point  of  age  takes  precedence  when  the  date  of  notifica- 
tion is  the  same. 

The  Deputy  Judges  when  acting  are  in  the  same  position  as 
the  Judges.     They  rank,  however,  after  the  latter. 

Article  5 

The  Judges  enjoy  diplomatic  privileges  and  immunities  in 
the  performance  of  their  duties,  and  when  outside  their  own 
country. 

Before  taking  their  seat,  the  Judges  and  Deputy  Judges 
shall  take  an  oath,  before  the  Administrative  Council,  or  make 
a  solemn  affirmation  to  discharge  their  duties  impartially  and 
conscientiously. 

Article  6 

The  Court  annually  nominates  three  Judges  to  form  a  special 
delegation  and  three  more  to  replace  them  if  the  former  are 
unable  to  act.  They  are  eligible  for  re-election.  The  election 
is  by  ballot,     The  persons  who  secure  the  largest  number  of 


272  DOCUMENTS  ON  INTERNATIONAL  LAW 

votes  are  considered  elected.  The  delegation  elects  its  own 
President,  who,  in  default  of  a  majority,  is  appointed  by  lot. 

A  member  of  the  delegation  cannot  act  when  the  Power  which 
appointed  him,  or  to  which  he  belongs,  is  one  of  the  parties. 

The  members  of  the  delegation  shall  wind  up  the  business 
submitted  to  them,  even  if  the  period  for  which  they  have  been 
appointed  Judges  has  expired. 

Article  7 

A  Judge  may  not  act  judicially  in  any  case  in  which  he  has, 
in  any  way  whatever,  taken  part  in  the  decision  of  a  National 
Tribunal,  of  a  Tribunal  of  Arbitration,  or  of  a  Commission  of 
Inquiry,  or  has  figured  in  the  suit  as  counsel  or  advocate  for 
one  of  the  parties. 

A  Judge  cannot  act  as  agent  or  advocate  before  the  Judicial 
Arbitration  Court  or  the  Permanent  Court  of  Arbitration, 
before  a  Special  Tribunal  of  Arbitration  or  a  Commission  of 
Inquiry,  nor  act  therein  for  one  of  the  parties  in  any  capacity 
whatsoever  so  long  as  his  appointment  lasts. 

Article  8 

The  Court  elects  its  President  and  Vice-President  by  an 
absolute  majority  of  the  votes  cast.  After  two  ballots,  the 
elecition  is  made  by  a  bare  majority  and,  in  case  the  votes  are 
equal,  by  lot. 

Article  9 

The  Judges  of  the  Judicial  Arbitration  Court  receive  an 
annual  salary  of  6,000  Nctherland  florins.  This  salary  is  paid 
at  the  end  of  each  half-year,  reckoned  from  the  date  on  which 
the  Court  meets  for  the  first  time. 

In  the  exercise  of  their  duties  during  the  sessions  or  in  the 
special  cases  covered  by  the  present  Convention,  they  receive 
the  sum  of  100  florins  per  diem.  They  are  further  entitled  to 
receive  a  travelling  allowance  fixed  in  accordance  with  the 
Regulations  existing  in  their  own  country.  The  provisions 
of  the  present  paragraph  are  applicable  also  to  a  Deputy  Judge 
when  acting  for  a  Judge. 


THE  LAW  OF  WAR  273 

These  emoluments  are  included  in  the  general  expenses  of 
the  Court  dealt  with  in  Article  33,  and  are  paid  through  the 
International  Bureau  created  by  the  Convention  for  the  Pacific 
Settlement  of  International  Disputes. 

Article  10 
The  Judges  may  not  accept  from  their  own  Government  or 
from  that  of  any  other  Power  any  remuneration  for  services 
connected  with  their  duties  in  their  capacity  of  members  of  the 
Court. 

Article  11 

The  seat  of  the  Judicial  Arbitration  Court  is  at  The  Hague, 
and  cannot  be  transferred  elsewhere,  except  in  circumstances 
beyond  its  control. 

The  delegation  may  choose,  with  the  assent  of  the  parties 
concerned,  another  place  of  meeting,  if  special  circumstances 
render  such  a  step  necessary. 

Article  12 

The  Administrative  Council  fulfils  the  same  functions  with 
regard  to  the  Judicial  Arbitration  Court  as  with  regard  to  the 
Permanent  Court  of  Arbitration. 

Article  13 

The  International  Bureau  acts  as  registry  to  the  Judicial 
Arbitration  Court,  and  shall  place  its  offices  and  staff  at  the 
disposal  of  the  Court.  It  has  the  custody  of  the  archives  and 
carries  out  the  administrative  work. 

The  Secretary-General  of  the  Bureau  acts  as  Registrar. 

The  necessary  secretaries  to  assist  the  Registrar,  translators 
and  shorthand  WTiters  are  appointed  and  sworn  in  by  the  Court. 

Article  IJj. 

The  Court  meets  in  session  once  a  year.  The  session  opens 
the  third  Wednesday  in  June  and  lasts  until  all  the  business  on 
the  agenda  has  been  transacted. 

The  Court  does  not  meet  in  session  if  the  delegation  con- 


274  DOCUMENTS  ON   INTERNATIONAL  LAW 

siders  that  such  meeting  is  unnecessary.  A  Power  may  insist 
that  the  session  shall  be  held  if  it  is  party  in  a  case  actually 
pending  before  the  Court,  the  pleadings  in  which  are  closed,  or 
about  to  be  closed. 

When  necessary,  the  delegation  may  summon  the  Court  in 
extraordinary  session. 

Article  16 

A  Report  of  the  work  of  the  Court  shall  be  drawn  up  every 
year  by  the  delegation.  This  Report  shall  be  forwarded  to  the 
Contracting  Powers  through  the  International  Bureau.  It 
shall  also  be  communicated  to  the  Judges  and  Deputy  Judges 
of  the  Court. 

Article  16 

The  Judges  and  Deputy  Judges  of  the  Judicial  Arbitration 
Court  may  also  be  appointed  Judges  and  Deputy  Judges  in  the 
International  Prize  Court. 

Part  II  —  Jurisdiction  and  Procedure 

Article  17 
The  Judicial  Arbitration  Court  can  deal  with  all  cases  sub- 
mitted to  it,  in  virtue  either  of  a  general  undertaking  to  have 
recourse  to  arbitration  or  of  a  special  agreement. 

Article  18 
The  delegation  can  — 

(1)  Decide  the  cases  of  arbitration  referred  to  in  the  preced- 
ing Article,  if  the  parties  agree  upon  the  application  of  the 
summary  procedure,  laid  down  in  Part  IV,  Chapter  IV,  of  the 
Convention  for  the  Pacific  Settlement  of  International  Disputes; 

(2)  Hold  an  inquiry  under  and  in  accordance  with  Part  III 
of  the  said  Convention,  in  so  far  as  such  an  inquiry  is  intrusted 
to  the  delegation  by  the  joint  accord  of  the  parties.  With  the 
assent  of  the  parties,  and  as  an  exception  to  Article  7,  paragraph 
1,  the  members  of  the  delegation  who  have  taken  part  in  the 
inquiry  may  sit  as  Judges,  if  the  case  in  dispute  is  submitted  to 
the  arbitration  of  the  Court  or  of  the  delegation  itself. 


THE  LAW  OF  WAR  275 

Article  19 

The  delegation  can  also  settle  the  Compromis  referred  to  in 
Article  52  of  the  Convention  for  the  Pacific  Settlement  of 
International  Disputes  if  the  parties  are  agreed  to  have  recourse 
to  the  Court  for  the  purpose. 

It  can  also  do  so,  even  if  the  request  is  only  made  by  one  of 
the  parties,  when  all  attempts  to  reach  an  understanding 
through  the  diplomatic  channel  have  failed  in  the  case  of^ — 

(1)  A  dispute  covered  by  a  general  Treaty  of  Arbitration 
concluded  or  renewed  after  the  present  Convention  has  come 
into  force,  and  providing  for  a  Compromis  in  all  disputes,  and 
not  either  explicitly  or  implicitly  excluding  the  settlement  of  the 
Compromis  from  the  jurisdiction  of  the  delegation.  Recourse 
cannot,  however,  be  had  to  the  Court  if  the  other  party  declares 
that  in  its  opinion  the  dispute  does  not  belong  to  the  category 
of  questions  which  can  be  submitted  to  obligatory  arbitration, 
unless  the  Treaty  of  Arbitration  confers  upon  the  Arbitration 
Tribunal  the  power  of  deciding  this  preliminary  question. 

(2)  A  dispute  arising  from  contract  debts  claimed  from  one 
Power  by  another  Power  as  due  to  its  subjects  or  citizens,  and 
for  the  settlement  of  which  the  offer  of  arbitration  has  been 
accepted.  This  provision  is  not  applicable  if  the  acceptance  is 
subject  to  the  condition  that  the  Compromis  should  be  settled 
in  some  other  way. 

Article  20 

Each  of  the  parties  concerned  may  nominate  a  Judge  of  the 
Court  to  take  part,  with  power  to  vote,  in  the  examination  of 
the  case  submitted  to  the  delegation. 

If  the  delegation  acts  as  a  Commission  of  Inquiry,  this  task 
may  be  intrusted  to  persons  other  than  the  Judges  of  the 
Court.  The  travelling  expenses  and  remuneration  to  be  given 
to  the  said  persons  are  fixed  and  borne  by  the  Powers  appoint- 
ing them. 

Article  21 

The  Contracting  Powers  alone  may  have  access  to  the  Judicial 
Arbitration  Court  set  up  by  the  present  Convention. 


276  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  22 
The  Judicial  Arbitration  Court  follows  the  rules  of  procedure 
laid    down  in  the  Convention  for  the  Pacific  Settlement  of 
International  Disputes,  except  in  so  far  as  the  procedure  is 
prescribed  in  the  present  Convention. 

Article  23 
The  Court  determines  which  language  it  shall  use  and  the 
languages  the  emplo>Tnent  of  which  shall  be  authorized  before 
it. 

Article  24 

The  International  Bureau  serves  as  channel  for  all  communi- 
cations which  may  have  to  be  made  to  the  Judges  during  the 
interchange  of  pleadings  provided  for  in  Article  63,  paragraph 
2,  of  the  Convention  for  the  Pacific  Settlement  of  International 
Disputes. 

Article  25 

For  the  service  of  all  notices,  in  particular  on  the  parties,  wit- 
nesses, or  experts,  the  Court  may  apply  direct  to  the  Govern- 
ment of  the  State  on  the  territory  of  which  the  service  is  to  be 
carried  out.  The  same  principle  applies  in  the  case  of  steps 
being  taken  to  procure  evidence. 

Requests  for  this  purpose  can  onlj^  be  rejected  w^hen  the 
Power  applied  to  considers  them  calculated  to  impair  its  sov- 
ereign rights  or  its  safety.  If  the  request  is  complied  with,  the 
fees  charged  must  only  comprise  the  expenses  actually  incurred. 

The  Court  is  equally  entitled  to  act  through  the  Power  within 
the  territory  of  which  it  is  meeting. 

Notices  to  be  given  to  parties  in  the  place  where  the  Court 
sits  may  be  served  through  the  International  Bureau. 

Article  26 

The  discussions  are  under  the  direction  of  the  President  or 
Vice-President,  or,  in  case  they  are  absent  or  cannot  act,  of  the 
senior  Judge  present. 

The  Judge  appointed  by  either  party  cannot  preside. 


THE  LAW  OF  WAR  277 

Article  27 

The  Court  considers  its  decisions  in  private,  and  the  pro- 
ceedings remain  secret. 

All  questions  are  decided  by  a  majority  of  the  Judges  present. 
If  the  number  of  Judges  is  even  and  equally  divided,  the  vote 
of  the  junior  Judge,  in  the  order  of  precedence  laid  down  in 
Article  4,  paragraph  1,  is  not  counted. 

Article  28 
The  judgment  of  the  Court  must  state  the  reasons  on  which 
it  is  based.     It  recites  the  names  of  the  Judges  taking  part 
in  it,  and  is  signed  by  the  President  and  by  the  Registrar. 

Article  29 
Each  party  pays  its  own  costs  and  an  equal  share  of  the  costs 
of  the  trial. 

Article  30 

The  provisions  of  Articles  21  to  29  are  applicable  so  far  as 
may  be  to  the  procedure  before  the  delegation. 

When  the  right  of  adding  a  member  to  the  delegation  has 
been  exercised  by  one  of  the  parties  only,  the  vote  of  the  addi- 
tional member  is  not  recorded  if  the  votes  are  equally  divided. 

Article  31 

The  general  expenses  of  the  Court  are  borne  by  the  Con- 
tracting Powers. 

The  Administrative  Council  applies  to  the  Powers  to  obtain 
the  funds  requisite  for  the  working  of  the  Court. 

Article  32 

The  Court  itself  draws  up  its  own  rules  of  procedure,  which 
must  be  communicated  to  the  Contracting  Powers. 

After  the  ratification  of  the  present  Convention  the  Court 
shall  meet  as  early  as  possible  in  order  to  draw  up  these  rules, 
to  elect  the  President  and  Vice-President,  and  to  appoint  the 
members  of  the  delegation. 


278  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  33 

The  Court  may  propose  modifications  in  the  provisions  of 
the  present  Convention  concerning  procedure.  These  pro- 
posals are  communicated  through  the  Netherland  Government 
to  the  Contracting  Powers,  which  will  confer  together  as  to  the 
measures  to  be  taken. 

Part  III  —  Final  Provisions 

Article  34 

The  present  Convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  Protocol  of  the  deposit  of  each  ratification  shall  be  drawn 
up,  of  which  a  duly  certified  copy  shall  be  sent  through  the 
diplomatic  channel  to  all  the  Signatory  Powers. 

Article  35 

The  Convention  shall  come  into  force  six  months  after  its 
ratification. 

It  shall  remain  in  force  for  twelve  years,  and  shall  be  tacitly 
renewed  for  periods  of  twelve  years,  unless  denounced. 

The  denunciation  must  be  notified,  at  least  two  years  before 
the  expiry  of  each  period,  to  the  Netherland  Government,  which 
will  inform  the  other  Powers. 

The  denunciation  shall  only  operate  in  respect  of  the  denounc- 
ing Power.  The  Convention  shall  continue  in  force  as  far  as 
the  other  Powers  are  concerned. 

Note.  —  This  "Draft  Convention"  is  confessedly  incomplete.  It  con- 
tains no  provisions  for  the  constitution  of  the  Court  whoso  functions  it 
describes.  The  Powers  were  unable  to  agree  on  this  question;  but  they 
were  unwiUing  to  lose  the  benefit  of  the  agreement  they  had  reached  on 
other  points.  They  therefore  placed  first  among  the  wishes  they  expressed 
in  the  Final  Act  of  the  Hague  Conference  of  1907  the  following  aspiration: — 

"The  Conference  calls  the  attention  of  the  Signatory  Powers  to  the  ad- 
visabihty  of  adopting  the  annexed  Draft  (convention  for  the  creation 
of  a  Judicial  Arbitration  Court,  and  of  bringing  it  into  force  as  soon  as  an 
agreement  has  been  reached  respecting  the  selection  of  the  Judges  and  the 
constitution  of  the  Court." 


THE  LAW  OF  WAR  279 

The  trouble  with  regard  to  the  constitution  of  the  Court  arose  from  the 
exaggerated  notions  of  equahty  entertained  by  numbers  of  the  lesser 
states.  They  claimed  not  merely  equahty  before  the  law  but  equality 
of  influence,  condition,  and  opportunity  —  a  position  fatal  to  any  possi- 
bihty  of  reahying  the  idea  of  a  rudimentary  federal  constitution  of  the 
Society  of  Nations,  which  seems  the  only  way  to  reconcile  the  free  develop- 
ment of  national  life  with  the  restraints  on  individual  action  in  common 
affairs  that  are  necessary  in  any  form  of  society.  The  United  States 
endeavoured  to  turn  the  difficulty  by  suggesting  in  1909  that  the  Inter- 
national Prize  Court  should  be  entrusted  with  the  functions  ascribed  in 
this  Convention  to  the  Judicial  Arbitration  Court.  But  up  to  the  present 
time  (June,  1914)  the  International  Prize  Court  itself  has  not  been  con- 
stituted. In  all  probabiUty  the  question  will  be  left  over  for  the  next 
Hague  Conference  to  deal  with.  A  strong  permanent  Court  is  certainly 
needed  to  develop  the  jurisprudence  of  arbitration  on  legal  fines.  But 
for  questions  which  transcend  law  and  go  down  to  the  very  roots  of  national 
fife  a  tribunal  is  required  which  will  give  weight  in  its  decisions  to  con- 
siderations of  equity,  humanity,  and  human  progress.  Its  evolution  will 
not  be  a  short  or  easy  process. 


PART    TV 

DOCUMENTS  ILLUSTRATING  QUESTIONS  CON- 
NECTED WITH  THE  LAW  OF  NEUTRALITY 

1.   The  United  States  Foreign  Enlistment  Act,  1818 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America,  in  Congress  assembled,  That  if 
any  citizen  of  the  United  States  shall,  mthin  the  territory  or 
jurisdiction  thereof,  accept  and  exercise  a  commission  to  serve 
a  foreign  Prince,  State,  Colony,  district,  or  people,  in  war,  by 
land  or  by  sea,  against  any  Prince,  State,  Colony,  district,  or 
people  with  whom  the  United  States  are  at  peace,  the  person  so 
offending  shall  be  deemed  guilty  of  a  high  misdemeanour,  and 
shall  be  fined  not  more  than  two  thousand  dollars,  and  shall  be 
imprisoned  not  exceeding  three  years. 

Sect.  2.  And  be  it  further  enacted,  That  if  any  person  shall 
within  the  territory  or  jurisdiction  of  the  United  States,  enlist 
or  enter  himself,  or  hire  or  retain  another  person  to  enlist  or 
enter  himself,  or  to  go  beyond  the  limits  or  jurisdiction  of  the 
United  States,  with  intent  to  be  enlisted  in  the  service  of  any 
foreign  Prince,  State,  Colony,  district,  or  people,  as  a  soldier, 
or  as  a  marine  or  seaman,  on  board  of  any  vessel  of  war,  letter 
of  marqu(!,  or  privateer,  every  person  so  offending  shall  be 
deemed  guilty  of  a  high  misdemeanour,  and  shall  be  fined  not 
exceeding  one  thousand  dollars,  and  be  imprisoned  not  exceed- 
ing three  years:  Provided,  that  this  Act  shall  not  be  construed 
to  extend  to  any  subject  or  citizen  of  any  foreign  Prince,  State, 
Colony,  district  or  people,  who  shall  transiently  be  within  the 
United  States,  and  shall  on  board  of  any  vessel  of  war,  letter  of 
marque,  or  privateer,  which  at  the  time  of  its  arrival  within  the 
United  States,  was  fitted  and  equij^jped  as  such,  enter  and  enlist 
himself,  or  hire  or  retain  another  subject  or  citizen  of  the  same 


THE  LAW  OF  NEUTRALITY  281 

foreign  Prince,  State,  Colonj^,  district,  or  people,  who  is  tran- 
siently within  the  United  States,  to  enlist  or  enter  himself  to 
serve  such  foreign  Prince,  State,  Colony,  district,  or  people,  on 
board  such  vessel  of  war,  letter  of  marque,  or  privateer,  if  the 
United  States  shall  then  be  at  peace  with  such  foreign  Prince, 
State,  Colony,  district,  or  people. 

Sect.  3.  And  be  it  further  enacted,  That  if  any  person  shall, 
within  the  limits  of  the  United  States,  fit  out  and  arm,  or 
attempt  to  fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed, 
or  shall  knowingly  be  concerned  in  the  furnishing,  fitting  out, 
or  arming,  of  any  ship  or  vessel  with  intent  that  such  ship  or 
vessel  shall  be  employed  in  the  service  of  any  foreign  Prince, 
or  State,  or  of  any  Colony,  district,  or  people,  to  cruise  or 
commit  hostilities  against  the  subjects,  citizens,  or  property 
of  any  foreign  Prince  or  State,  or  of  any  Colony,  district  or 
people  with  whom  the  United  States  are  at  peace,  or  shall  issue 
or  deliver  a  commission  within  the  territory  or  jurisdiction  of 
the  United  States,  for  any  ship  or  vessel,  to  the  intent  that  she 
may  be  employed  as  aforesaid,  every  person  so  offending  shall 
be  guilty  of  a  high  misdemeanour  and  shall  be  fined  not  more 
than  ten  thousand  dollars,  and  imprisoned  not  more  than  three 
years;  and  every  such  ship  or  vessel,  with  her  tackle,  apparel, 
and  furniture,  together  with  all  materials,  arms,  ammunition, 
and  stores,  which  may  have  been  procured  for  the  building  and 
equipment  thereof,  shall  be  forfeited;  one-half  to  the  use  of  the 
informer,  and  the  other  half  to  the  use  of  the  United  States. 

Sect.  4.  And  be  it  further  enacted,  That  if  any  citizen  or 
citizens  of  the  United  States  shall,  without  the  limits  thereof, 
fit  out  and  arm,  or  attempt  to  fit  out  and  arm,  or  procure  to  be 
fitted  out  and  armed,  or  shall  knowingly  aid  or  be  concerned 
in  the  furnishing,  fitting  out,  or  arming,  any  private  ship  or 
vessel  of  war,  or  privateer,  with  intent  that  such  ship  or  vessel 
shall  be  employed  to  cruise,  or  commit  hostilities,  upon  the 
citizens  of  the  United  States,  or  their  property,  or  shall  take 
the  command  of,  or  enter  on  board  of  any  such  ship  or  vessel, 
for  the  intent  aforesaid,  or  shall  purchase  any  interest  in  any 
such  ship  or  vessel,  with  a  view  to  share  in  the  profits  thereof, 


282  DOCUMENTS  ON  INTERNATIONAL  LAW 

such  persons  so  offending  shall  be  deemed  guilty  of  a  high  mis- 
demeanour, and  fined  not  more  than  ten  thousand  dollars,  and 
imprisoned  not  more  than  ten  years;  and  the  trial  for  such 
offence,  if  committed  within  the  limits  of  the  United  States,  shall 
be  in  the  district  in  which  the  offender  shall  be  apprehended  or 
first  brought. 

Sect.  5.  And  be  it  further  enacted,  That  if  any  persons  shall 
within  the  territory  or  jurisdiction  of  the  United  States,  increase 
or  augment,  or  procure  to  be  increased  or  augmented,  or  shall 
knowingly  be  concerned  in  increasing  or  augmenting,  the  force 
of  any  ship  of  war,  cruiser,  or  other  vessel,  wliich,  at  the  time 
of  her  arrival  within  the  United  States  was  a  ship  of  war,  or 
cruiser,  or  armed  vessel,  in  the  service  of  any  foreign  Prince  or 
State,  or  of  any  Colony,  district,  or  people,  or  belonging  to  the 
subjects  or  citizens  of  any  such  Prince  or  State,  Colony,  dis- 
trict, or  people,  the  same  being  at  war  with  any  foreign  Prince 
or  State,  or  of  any  Colony,  district,  or  people,  \vith  whom  the 
United  States  are  at  peace,  by  adding  to  the  number  of  the  guns 
of  such  vessel,  or  by  changing  those  on  board  of  her  for  guns  of 
a  larger  calibre,  or  by  the  addition  thereto  of  any  equipment 
solely  appUcable  to  war,  every  person  so  offending  shall  be 
deemed  guilty  of  a  high  misdemeanour,  shall  be  fined  not 
more  than  one  thousand  dollars,  and  imprisoned  not  more 
than  one  year. 

Sect.  6.  And  be  it  further  enacted,  That  if  any  person  shall 
within  the  territory  or  jurisdiction  of  the  United  States,  begin 
or  set  on  foot,  or  provide  or  prepare  the  means  for  any  military 
expedition  or  enterprise,  to  be  carried  on  from  thence  against 
the  territory  or  dominions  of  any  foreign  Prince  or  State,  or 
of  any  Colony,  district,  or  people,  with  whom  the  United  States 
are  at  peace,  every  person  so  offending  shall  be  deemed  guilty 
of  a  high  misdemeanour,  and  shall  be  fined  not  exceeding  three 
thousand  dollars,  and  be  imprisoned  not  more  than  one  year. 

Sect.  7.  And  be  it  further  enacted.  That  the  District  Courts 
shall  take  cognizance  of  complaints,  by  whomsoever  instituted, 
in  cases  of  captures  made  within  the  Avaters  of  the  United  States, 
or  within  a  marine  league  of  the  coasts  or  shores  thereof. 


THE  LAW  OF  NEUTRALITY  283 

Sect.  8.  And  be  it  further  enacted,  That  in  every  case  in 
which  a  vessel  shall  be  fitted  out  and  armed,  or  attempted  to 
be  fitted  out  and  armed,  or  in  which  the  force  of  any  vessel  of 
war,  cruiser,  or  other  armed  vessel,  shall  be  increased  or  aug- 
mented, or  in  which  any  military  expedition  or  enterprise  shall 
be  begun  or  set  on  foot,  contrary  to  the  provisions  and  prohi- 
bitions of  this  Act;  and  in  every  case  of  the  capture  of  a  ship 
or  vessel  within  the  jurisdiction  or  protection  of  the^United 
States  as  before  defined,  and  in  every  case  in  which  any  process 
issuing  out  of  any  Court  of  the  United  States  shall  be  disobeyed 
or  resisted  by  any  person  or  persons  having  custody  of  any 
vessel  of  war,  cruiser,  or  other  armed  vessel  of  any  foreign 
Prince,  or  State,  or  of  any  Colony,  district,  or  people,  or  of  any 
subjects  or  citizens  of  any  foreign  Prince  or  State,  or  of  any 
Colony,  district,  or  people,  in  every  case  it  shall  be  lawful  for 
the  President  of  the  United  States,  or  such  other  persons  as 
he  shall  have  empowered  for  that  purpose,  to  employ  such  part 
of  the  land  or  naval  forces  of  the  United  States,  or  of  the  mihtia 
thereof,  as  shall  be  necessary  for  the  purpose  of  taking  pos- 
session of  and  detaining  any  such  ship  or  vessel,  with  her  prize 
or  prizes,  if  any,  in  order  to  the  execution  of  the  prohibitions 
and  penalties  of  this  Act,  and  to  the  restoring  the  prize  or 
prizes  in  the  cases  in  which  restoration  shall  have  been  ad- 
judged, and  also  for  the  purpose  of  preventing  the  carrying  on 
any  such  expedition  or  enterprise  from  the  territories  or  juris- 
diction of  the  United  States  against  the  territories  or  domin- 
ions of  any  foreign  Prince  or  State,  or  of  any  Colony,  district, 
or  people,  with  whom  the  United  States  are  at  peace. 

Sect.  9.  And  be  it  further  enacted,  That  it  shall  be  lawful 
for  the  President  of  the  United  States,  or  such  person  as  he  shall 
empower  for  that  purpose,  to  employ  such  part  of  the  land  or 
naval  forces  of  the  United  States,  or  of  the  militia  thereof,  as 
shall  be  necessary  to  compel  any  foreign  ship  or  vessel  to  depart , 
the  United  States  in  all  cases  in  which  by  the  law  of  nations  or 
the  Treaties  of  the  United  States,  they  ought  not  to  remain 
within  the  United  States. 

Sect.  10.     And  be  it  further  enacted.  That  the   owners   or 


284  DOCUMENTS  ON  INTERNATIONAL  LAW 

consignees  of  every  armed  ship  or  vessel  sailing  out  of  the  ports 
of  the  United  States,  belonging  wholly  or  in  part  to  citizens 
thereof,  shall  enter  into  bond  to  the  United  States,  with  sufl&cient 
sureties,  prior  to  clearing  out  the  same,  in  double  the  amount 
of  the  value  of  the  vessel  and  cargo  on  boarfl,  including  her 
armament,  that  the  said  ship  or  vessel  shall  not  be  employed  by 
such  owners  to  cruise  or  commit  hostilities  against  the  subjects, 
citizens,  or  property,  of  any  foreign  Prince  or  State,  or  of  any 
Colony,  district,  or  people,  with  whom  the  United  States  are 
at  peace. 

Sect.  11.  And  be  it  further  enacted.  That  the  Collectors 
of  the  Customs  be,  and  they  are  hereby  respectively  authorized 
and  required  to  detain  any  vessel  manifestly  built  for  warlike 
purposes,  and  about  to  depart  the  United  States,  of  which  the 
cargo  shall  principally  consist  of  arms  and  munitions  of  war, 
when  the  number  of  men  shipped  on  board,  or  other  circum- 
stances, shall  render  it  probable  that  such  vessel  is  intended  to 
be  employed  by  the  owner  or  owners  to  cruise  or  commit  hos- 
tilities upon  the  subjects,  citizens,  and  property  of  any  foreign 
State,  or  of  any  Colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  until  the  decision  of  the  President 
be  had  thereon,  or  until  the  owners  shall  give  such  bond  and 
security,  as  is  required  of  the  owners  of  armed  ships  by  the 
preceding  section  of  this  Act. 

Sect.  12.  And  be  it  further  enacted.  That  the  Act  passed 
on  the  fifth  day  of  June  One  thousand  seven  hundred  and 
ninety-four,  entitled  "An  Act  in  addition  to  the  Act  for  the 
punishment  of  certain  crimes  against  the  United  States,"  con- 
tinued in  force  for  a  limited  time,  by  the  Act  of  the  second 
of  IMarch  One  thousand  seven  hundred  and  ninety-seven,  and 
perpetuated  by  the  Act  passed  on  the  twenty-fourth  of  April 
One  thousand  eight  hundred,  and  the  Act  passed  on  the  four- 
teenth day  of  June  One  thousand  seven  hundred  and  ninety- 
seven,  entitled  "An  Act  to  prevent  citizens  of  the  United  States 
from  privateering  against  nations  in  amity  with,  or  against  the 
citizens  of,  the  United  States,"  and  the  Act  passed  the  third 
day  of  March  One  thousand  eight  hundred  and  seventeen, 


THE  LAW  OF   NEUTRALITY  285 

entitled  "An  Act  more  effectually  to  preserve  the  neutral  rela- 
tions of  the  United  States,"  be,  and  the  same  are  hereby  sev- 
erally repealed:  Provided  nevertheless,  that  persons  having 
heretofore  offended  against  any  of  the  Acts  aforesaid  may  be 
prosecuted,  convicted,  and  punished  as  if  the  same  were  not 
repealed;  and  no  forfeiture  heretofore  incurred  by  a  violation 
of  any  of  the  Acts  aforesaid  shall  be  affected  by  such 
repeal. 

Sect.  13.  And  be  it  further  enacted,  That  nothing  in  the 
foregoing  Act  shall  be  constructed  to  prevent  the  prosecution 
or  punishment  of  treason,  or  any  piracy  defined  by  the  laws  of 
the  United  States. 


2.    The  British  Foreign  Establishment  Act,  1870 

Whereas  it  is  expedient  to  make  provisions  for  the  regu- 
lation of  the  conduct  of  Her  Majesty's  subjects  during  the 
existence  of  hostihties  between  foreign  States  with  wliich  Her 
Majesty  is  at  peace;  Be  it  enacted  by  the  Queen's  Most  Excel- 
lent Majesty,  by  and  with  the  consent  and  advice  of  the  Lords, 
spiritual  and  temporal,  and  Commons,  in  this  present  ParUa- 
ment  assembled,  and  by  the  authority  of  the  same,  as  follows:  — 

Preliminary 

1.  This  Act  may  be  cited  for  all  purposes  as  'The  Foreign 
EnUstment  Act,  1870.' 

2.  This  Act  shall  extend  to  all  the  dominions  of  Her  Majesty 
including  the  adjacent  territorial  waters. 

3.  This  Act  shall  come  into  operation  in  the  United  King- 
dom immediately  on  the  passing  thereof,  and  shall  be  proclaimed 
in  every  British  possession  by  the  Governor  thereof  as  soon  as 
may  be  after  he  receives  notice  of  this  Act,  and  shall  come  into 
operation  in  that  British  possession  on  the  day  of  such  proclama- 
tion, and  the  time  at  which  this  Act  comes  into  operation  in 
any  place  is,  as  respects  such  place,  in  this  Act  referred  to  as 
the  commencement  of  this  Act. 


286  DOCUMENTS  ON  INTERNATIONAL  LAW 

Illegal  Enlistment 

4.  If  any  person  without  the  licence  of  Her  Majesty,  being  a 
British  subject,  within  or  without  Her  Majesty's  dominions, 
accepts  or  agrees  to  accept  any  commission  or  engagement  in 
the  miUtary  or  naval  service  of  any  foreign  State  at  war  with 
any  foreign  State  at  peace  with  Her  Majesty,  and  in  this  Act 
referred  to  as  a  friendly  State,  or  whether  a  British  subject  or 
not  within  Her  Majesty's  dominions  induces  any  other  person 
to  accept  or  agree  to  accept  any  commission  or  engagement  in 
the  mihtary  or  naval  service  of  any  such  foreign  State  as  afore- 
said —  He  shall  be  guilty  of  an  offence  against  this  Act  and 
shall  be  punishable  by  fine  and  imprisonment,  or  either  of  such 
punishments,  at  the  discretion  of  the  court  before  which  the 
offender  is  convicted;  and  imprisomnent,  if  awarded,  may  be 
either  with  or  without  hard  labour. 

5.  If  any  person,  without  the  licence  of  Her  Majesty,  being 
a  British  subject,  quits  or  goes  on  board  any  ship  with  a  view 
of  quitting  Her  Majesty's  dominions,  with  intent  to  accept  any 
commission  or  engagement  in  the  military  or  naval  service  of 
any  foreign  State  at  war  with  a  friendly  State,  or,  whether  a 
British  subject  or  not,  within  Her  Majesty's  dominions,  induces 
any  other  person  to  quit  or  go  on  board  any  ship  with  a  view  of 
quitting  Her  Majesty's  dominions  with  the  like  intent  —  He 
shall  be  guilty  of  an  offence  against  this  Act,  and  shall  be  punish- 
able by  fine  and  im])risonment,  or  either  of  such  jounishments, 
at  the  discretion  of  the  court  before  which  the  offender  is  con- 
victed; and  imprisonment,  if  awarded,  may  be  either  with  or 
without  hard  labour. 

6.  If  any  person  induces  any  other  person  to  quit  Her 
Majesty's  dominions  or  to  embark  on  any  ship  within  Her 
Majesty's  dominions  under  a  misrepresentation  or  false  repre- 
sentation of  the  service  in  which  such  person  is  to  be  engaged, 
with  the  intent  or  in  order  that  such  person  may  accept  or 
agree  to  accept  any  commission  or  engagement  in  the  mihtary 
or  naval  service  of  any  foreign  State  at  war  with  a  friendly 
State,  —  He  shall  be  guilty  of  an  offence  against  this  Act,  and 


THE  LAW  OF  NEUTRALITY  287 

shall  be  punishable  by  fine  and  imprisonment,  or  either  of  such 
punishments,  at  the  discretion  of  the  court  before  which  the 
offender  is  convicted;  and  imprisonment,  if  awarded,  may  be 
either  ^vith  or  without  hard  labour. 

7.  If  the  master  or  owner  of  any  ship,  without  the  licence 
of  Her  Majesty,  Imowingly  either  takes  on  board,  or  engages 
to  take  on  board,  or  has  on  board  such  ship  within  Her  Majesty's 
dominions,  any  of  the  following  persons,  in  this  Act  referred  to 
as  illegally  enlisted  persons,  that  is  to  say,  — 

(1)  Any  person  who,  being  a  British  subject  within  or  with- 
out the  dominions  of  Her  Majesty,  has,  without  the  licence  of 
Her  Majesty,  accepted  or  agreed  to  accept  any  commission  or 
engagement  in  the  military  or  naval  service  of  any  foreign  State 
at  war  with  any  friendly  State; 

(2)  Any  person,  being  a  British  subject,  who,  without  the 
licence  of  Her  Majesty,  is  about  to  quit  Her  Majesty's  domin- 
ions with  the  intent  to  accept  any  commission  or  engagement 
in  the  military  or  naval  service  of  any  foreign  State  at  war  with 
a  friendly  State; 

(3)  Any  person  who  has  been  induced  to  embark  under  a 
misrepresentation  or  false  representation  of  the  service  in  which 
such  person  is  to  be  engaged,  with  the  intent  or  in  order  that 
such  person  may  accept  or  agree  to  accept  any  commission  or 
engagement  in  the  military  or  naval  service  of  any  foreign  State 
at  war  with  a  friendly  State; 

Such  master  or  owner  shall  be  guilty  of  an  offence  against 
this  Act,  and  the  following  consequences  shall  ensue;  that  is 
to  say,  - — 

(1)  The  offender  shall  be  punishable  by  fine  and  imprison- 
ment or  either  of  such  punishments,  at  the  discretion  of  the 
court  before  which  the  offender  is  convicted;  and  imprison- 
ment, if  awarded,  may  be  either  with  or  without  hard  labour; 
and 

(2)  Such  ship  shall  be  detained  imtil  the  trial  and  convic- 
tion or  acquittal  of  the  master  or  owner,  and  until  all  penalties 
inflicted  on  the  master  or  owner  have  been  paid,  or  the  master 
or  owner  has  given  security  for  the  payment  of  such  penalties 


288  DOCUMENTS  ON  INTERNATIONAL  LAW 

to  the  satisfaction  of  two  justices  of  peace,  or  other  magistrate 
or  magistrates  having  the  authority  of  two  justices  of  the 
peace;  and 

(3)  All  illegally  enlisted  persons  shall  immediately  on  the 
discovery  of  the  offence  be  taken  on  shore,  and  shall  not  be 
allowed  to  return  to  the  ship. 

Illegal  Shipbuilding  and^  Illegal  Expeditions 

8.  If  any  person  within  Her  Majesty's  dominions,  without 
the  hcence  of  Her  Majesty,  does  any  of  the  following  Acts; 
that  is  to  say,  — 

(1)  Builds,  or  agrees  to  build  or  causes  to  be  built,  any  ship 
with  intent  or  knowledge,  or  having  reasonable  cause  to  beheve 
that  the  same  shall  or  will  be  employed  in  the  military  or  naval 
service  of  any  foreign  State  at  war  with  any  friendly  State;  or 

(2)  Issues  or  dehvers  any  commission  for  any  ship  with 
intent  or  knowledge,  or  having  reasonable  cause  to  believe  that 
the  same  shall  or  will  be  employed  in  the  miUtary  or  naval  service 
of  any  foreign  State  at  w^ar  with  any  friendly  State;  or 

(3)  Equips  any  ship  with  intent  or  knowledge,  or  having 
reasonable  cause  to  believe  that  the  same  shall  or  will  be  em- 
ployed in  the  military  or  naval  service  of  any  foreign  State  at 
war  with  any  friendly  State;  or 

(4)  Despatches,  or  causes  or  allows  to  be  despatched,  any 
ship  with  intent  or  knowledge,  or  having  reasonable  cause  to 
believe  that  the  same  shall  or  will  be  employed  in  the  military 
or  naval  service  of  any  foreign  State  at  war  with  any  friendly 
State; 

Such  person  shall  be  deemed  to  have  committed  an  offence 
against  this  Act,  and  the  follownng  consequences  shall  ensue:  — 

(1)  The  offender  shall  be  punishable  by  fine  and  imprison- 
ment, or  either  of  such  punishments,  at  the  discretion  of  the 
court  before  which  th(^  offender  is  convicted;  and  imprison- 
ment, if  awarded,  may  be  either  with  or  without  hard  labour; 

(2)  The  ship  in  respect  of  which  any  such  offence  is  com- 
mitted, and  her  eq\iipments,  shall  be  forfeited  to  Her  Majesty; 
Provided  that  a  person  building,  causing  to  be  built,  or  equipping 


THE  LAW  OF  NEUTRALITY  289 

a  ship  in  any  of  the  cases  aforesaid,  in  pursuance  of  a  contract 
made  before  the  commencement  of  such  war  as  aforesaid,  shall 
not  be  liable  to  any  of  the  penalties  imposed  by  this  section 
in  respect  of  such  building  or  equipping  if  he  satisfies  the  con- 
ditions following;  (that  is  to  say):  — 

(1)  If  forthwith  upon  a  proclamation  of  neutrahty  being 
issued  by  Her  Majesty  he  gives  notice  to  the  Secretary  of  State 
that  he  is  so  building,  causing  to  be  built,  or  equipping  such 
ship,  and  furnishes  such  particulars  of  the  contract  and  of  any 
matters  relating  to,  or  done  or  to  be  done  under  the  contract 
as  may  be  required  by  the  Secretary  of  State; 

(2)  If  he  gives  such  security,  and  takes  and  permits  to  be 
taken  such  other  measures,  if  any,  as  the  Secretary  of  State 
may  prescribe  for  ensuring  that  such  ship  shall  not  be 
despatched,  delivered,  or  removed  without  the  Ucence  of  Her 
Majesty  until  the  termination  of  such  war  as  aforesaid. 

9.  Where  any  ship  is  built  by  order  of  or  on  behalf  of  any 
foreign  State  when  at  war  with  a  friendly  State,  or  is  delivered 
to  or  to  the  order  of  such  foreign  State,  or  any  person  who  to 
the  knowledge  of  the  person  building  is  an  agent  of  such  foreign 
State,  or  is  paid  for  by  such  foreign  State  or  such  agent,  and  is 
employed  in  the  military  or  naval  service  of  such  foreign  State, 
such  ship  shall,  unless  the  contrary  is  proved,  be  deemed  to 
have  been  built  with  a  view  to  being  so  employed,  and  the  burden 
shall  lie  on  the  builder  of  such  ship  of  proving  that  he  did  not 
know  that  the  ship  was  intended  to  be  so  employed  in  the  miU- 
tary  or  naval  service  of  such  foreign  State. 

10.  If  any  person  within  the  dominions  of  Her  Majesty, 
and  without  the  licence  of  Her  Majesty  —  By  adding  to  the 
number  of  the  guns,  or  by  changing  those  on  board  for  other 
guns,  or  by  the  addition  of  any  equipment  for  war,  increases 
or  augments,  or  procures  to  be  increased  or  augmented,  or  is 
knowingly  concerned  in  increasing  or  augmenting  the  warlike 
force  of  any  ship  which  at  the  time  of  her  being  within  the  do- 
minions of  Her  Majesty  was  a  ship  in  the  military  or  naval 
service  of  any  foreign  State  at  war  with  any  friendly  State,  — 

Such  person  shall  be  guilty  of  an  offence  against  this  Act, 


290  DOCUMENTS  ON  INTERNATIONAL  LAW 

and  shall  be  punishable  by  fine  and  imprisonment,  or  either  of 
such  punishments,  at  the  discretion  of  the  court  before  which 
the  offender  is  convicted;  and  imprisonment,  if  awarded,  may 
be  either  with  or  without  hard  labour. 

11.  If  any  person  within  the  limits  of  Her  Majesty's  domin- 
ions, and  without  the  Ucence  of  Her  Majesty,  — 

Prepares  or  fits  out  any  naval  or  military  expedition  to 
proceed  against  tht;  dominions  of  any  friendly  State,  the  fol- 
lowing consequences  shall  ensue:  — 

(1)  Every  person  engaged  in  such  preparation  or  fitting  out, 
or  assisting  therein,  or  employed  in  any  capacity  in  such  expe- 
dition, shall  be  guilty  of  an  offence  against  this  Act,  and  shall 
be  punishable  by  fine  and  imprisonment,  or  either  of  such  pun- 
ishments, at  the  discretion  of  the  court  before  which  the  offender 
is  convicted;  and  imprisonment,  if  awarded,  may  be  either  with 
or  without  hard  labour. 

(2)  All  ships,  and  their  equipments,  and  all  arms  and  muni- 
tions of  war,  used  in  or  forming  part  of  such  expedition,  shall 
be  forfeited  to  Her  Majesty. 

12.  Any  person  who  aids,  abets,  counsels,  or  procures  the 
commission  of  any  offence  against  this  Act  shall  be  hable  to 
be  tried  and  punished  as  a  principal  offender. 

13.  The  term  of  imprisonment  to  be  awarded  in  respect  of 
any  offence  against  this  Act  shall  not  exceed  two  years. 

Illegal  Prize 

14.  If,  during  the  contiiuiance  of  any  war  in  which  Her 
Majesty  may  be  neutral,  any  ship,  goods,  or  merchandise  cap- 
tured as  prize  of  war  within  the  territorial  jurisdiction  of  Her 
Majesty  in  violation  of  the  neutraUty  of  this  realm,  or  captured 
by  any  ship  which  may  have  been  built,  equipped,  commis- 
sioned, or  despatched,  or  the  force  of  which  may  have  been 
augmented,  contrary  to  the  provisions  of  this  Act,  are  brought 
within  the  limits  of  Her  Majesty's  dominions  by  the  captor,  or 
any  agent  of  the  captor,  or  by  any  person  having  come  into 
possession  thereof  with  knowledge  that  the  same  was  prize  of 
war,  so  captured  as  aforesaid,  it  shall  be  lawful  for  the  original 


THE  LAW  OF  NEUTRALITY  291 

owner  of  such  prize,  or  his  agent,  or  for  any  person  authorized 
in  that  behalf  by  the  Government  of  the  foreign  State  to  which 
such  owner  belongs,  to  make  apphcation  to  the  Court  of  Ad- 
miralty for  seizure  and  detention  of  such  prize,  and  the  court 
shall,  on  due  proof  of  the  facts,  order  such  prize  to  be  restored. 

Every  such  order  shall  be  executed  and  carried  into  effect 
in  the  same  manner,  and  subject  to  the  same  right  of  appeal, 
as  in  case  of  any  order  made  in  the  exercise  of  the  ordinary 
jurisdiction  of  such  court;  and  in  the  meantime  and  until  a 
final  order  has  been  made  on  such  apphcation  the  court  shall 
have  power  to  make  all  such  provisional  and  other  orders  as  to 
the  care  or  custody  of  such  captured  ship,  goods,  or  merchandise, 
and  (if  the  same  be  of  perishable  nature,  or  incurring  risk  of 
deterioration)  for  the  sale  thereof,  and  with  respect  to  the  de- 
posit or  investment  of  the  proceeds  of  any  such  sale,  as  may  be 
made  by  such  court  in  the  exercise  of  its  ordinary  jurisdiction. 

General  Provision 

15.  For  the  purposes  of  this  Act,  a  hcence  by  Her  Majesty 
shall  be  under  the  sign  manual  of  Her  Majesty,  or  be  signified 
by  Order  in  Council  or  by  proclamation  of  Her  Majesty. 

Legal  Procedure 

16.  Any  offence  against  this  Act  shall,  for  all  purposes,  of, 
and  incidental  to,  the  trial  and  punishment  of  any  person  guilty 
of  any  such  offence,  be  deemed  to  have  been  committed,  either 
in  the  place  in  which  the  offence  was  wholly  or  partly  committed, 
or  in  any  place  within  Her  Majesty's  dominions  in  which  the 
person  who  committed  such  offence  may  be. 

17.  Any  offence  against  this  Act  may  be  described  in  any 
indictment  or  other  document  relating  to  such  offence,  in  cases 
where  the  mode  of  trial  requires  such  a  description,  as  having 
been  committed  at  the  place  where  it  is  wholly  or  partly  com- 
mitted, or  it  may  be  averred  generally  to  have  been  committed 
within  Her  Majesty's  dominions,  and  the  venue  or  local  descrip- 
tion in  the  margin  may  be  that  of  the  country,  city,  or  place  in 
which  the  trial  is  held. 


292  DOCUMENTS  ON  INTERNATIONAL  LAW 

18.  The  following  authorities,  that  is  to  say,  in  the  United 
Kingdom  any  judge  of  a  superior  court,  in  any  other  place 
within  the  jurisdiction  of  any  British  court  of  justice,  such 
court,  or,  if  there  are  more  courts  than  one,  the  court  having 
the  highest  criminal  jurisdiction  in  that  place,  may,  by  warrant 
or  instrument  in  the  nature  of  a  warrant  in  this  section  included 
in  the  term  'warrant,'  direct  that  any  offender  charged  with 
an  offence  against  this  Act  shall  l)e  removed  to  some  other 
place  in  Her  Majesty's  dominions  for  trial,  in  cases  where  it 
appears  to  the  authority  granting  the  warrant  that  the  removal 
of  such  offender  would  be  conducive  to  the  interest  of  justice, 
and  any  prisoner  so  removed  shall  be  triable  at  the  place  to 
which  he  is  removed,  in  the  same  manner  as  if  the  offence  had 
been  committed  at  such  place. 

Any  warrant  for  the  purpose  of  this  section  may  be  addressed 
to  the  master  of  any  ship  or  to  any  other  person  or  persons,  and 
the  person  or  persons  to  whom  such  warrant  is  addressed  shall 
have  power  to  convey  the  prisoner  therein  named  to  any  place 
or  places  named  in  such  warrant,  and  to  dehver  him,  when 
arrived  at  such  place  or  places,  into  the  custody  of  any  authority 
designated  by  such  warrant. 

Every  prisoner  shall  during  the  time  of  his  removal  under 
any  such  warrant  as  aforesaid,  be  deemed  to  be  in  the  legal 
custody  of  the  person  or  persons  empowered  to  remove  him. 

19.  All  proceedings  for  the  condemnation  and  forfeiture  of 
a  ship,  or  ship  and  equipment,  or  arms  and  munitions  of  war, 
in  pursuance  of  this  Act,  shall  require  the  sanction  of  the  Secre- 
tary of  State,  or  such  chief  executive  authority  as  is  in  this  Act 
mentioned,  and  shall  be  had  in  the  Court  of  Admiralty,  and  not 
in  any  other  court,  and  the  Court  of  Admiralty,  shall,  in  addi- 
tion to  any  power  given  to  the  court  by  this  Act,  have  in  respect 
of  any  ship  or  other  matter  brought  before  it  in  pursuance  of 
this  Act  all  powers  which  it  has  in  the  case  of  a  ship  or  matter 
brought  before  it  in  the  exercise  of  its  ordinary  jurisdiction. 

20.  Where  any  offence  against  this  Act  has  been  committed 
by  any  ]jerson,  by  reason  whereof  a  ship,  or  ship  and  equipment, 
or  aims  and  mmiitions  of  war  has  or  have  become  liable  to  for- 


THE  LAW  OF  NEUTRALITY  293 

feitiire,  proceedings  may  be  instituted  contemporaneously  or 
not,  as  may  be  thought  fit,  against  the  offender,  in  any  court 
having  jurisdiction  of  the  offence,  and  against  the  ship,  or  ship 
and  equipment,  or  arms  and  munitions  of  war,  for  the  forfeiture 
in  the  Court  of  Admiralty;  but  it  shall  not  be  necessary  to 
take  proceedings  against  the  offender,  because  proceedings  are 
instituted  for  the  forfeiture;  or  to  take  proceedings  for  the 
forfeiture,  because  proceedings  are  taken  against  the  offender. 
2L   The  following  officers,  that  is  to  say,  — 

(1)  Any  officer  of  Customs  in  the  United  Kingdom,  subject 
nevertheless  to  any  special  or  general  instructions  from  the 
Commissioner  of  Customs  or  any  officer  of  the  Board  of  Trade, 
subject  nevertheless  to  any  special  or  general  instructions  from 
the  Board  of  Trade; 

(2)  Any  officer  of  Customs  or  public  officer  in  any  British 
possession,  subject  nevertheless  to  any  special  or  general  instruc- 
tions from  the  Governor  of  such  possession; 

(3)  Any  commissioned  officer  on  full  pay  in  the  military 
service  of  the  Crown,  subject  nevertheless  to  any  special  or 
general  instruction  from  his  commanding  officer; 

(4)  Any  commissioned  officer  on  full  pay  in  the  naval  service 
of  the  Crown,  subject  nevertheless  to  any  special  or  general 
instructions  from  the  Admiralty  or  his  superior  officer,  may 
seize  or  detain  any  ship  liable  to  be  seized  or  detained  in  pur- 
suance of  this  Act,  and  such  officers  are  in  this  Act  referred  to  as 
'the  local  authority,'  but  nothing  in  this  Act  contained  shall 
derogate  from  the  power  of  the  Court  of  Admiralty  to  direct 
any  ship  to  be  seized  or  detained  by  any  officer  by  whom  such 
court  maj^  have  power  under  its  ordinary  jurisdiction  to  direct 
a  ship  to  be  seized  or  detained. 

22.  Any  officer  authorized  to  seize  or  detain  any  ship  in 
respect  of  any  offence  against  this  Act  may,  for  the  purpose  of 
enforcing  such  seizure  or  detention,  call  to  his  aid  any  constable 
or  officers  of  poUce,  or  any  officers  of  Her  Majesty's  army  or 
navy  or  marines,  or  any  excise  officers  or  officers  of  Customs, 
or  any  harbour  master  or  dock  master,  or  any  officers  having 
authority  by  law  to  make  seizures  of  ships,  and  may  put  on 


294  DOCUMENTS  ON  INTERNATIONAL  LAW 

board  any  ship  so  seized  and  detained  any  one  or  more  of  such 
officers  to  take  charge  of  the  same,  and  to  enforce  the  pro- 
visions of  this  Act,  and  any  officer  seizing  or  detaining  any  ship 
under  this  Act  may  use  force,  if  necessary,  for  the  purpose  of 
enforcing  seizure  or  detention,  and  if  any  person  is  killed  or 
maimed  by  reason  of  his  resisting  such  officer  in  the  execution 
of  his  duties,  or  any  person  acting  under  his  orders,  such  officer 
so  seizing  or  detaining  the  ship,  or  other  person,  shall  be  freely 
and  fully  indemnified  as  well  against  the  Queen's  Majesty,  her 
heirs  and  successors  as  against  all  persons  so  killed,  maimed, 
or  hurt. 

23.  If  the  Secretary  of  State  or  the  chief  executive  authority 
is  satisfied  that  there  is  a  reasonable  and  probable  cause  for 
believing  that  a  ship  within  Her  Majesty's  dominions  has  been 
or  is  being  built,  commissioned,  or  equipped  contrary  to  this 
Act,  and  is  about  to  be  taken  beyond  the  limits  of  such  domin- 
ions, or  that  a  ship  is  about  to  be  despatched  contrary  to  this 
Act,  such  Secretary  of  State  or  chief  executive  authority  shall 
have  power  to  issue  a  warrant  stating  that  there  is  reasonable 
and  probable  cause  for  beUeving  as  aforesaid,  and  upon  such 
warrant  the  local  authority  shall  have  power  to  seize  and  search 
such  ship,  and  to  detain  the  same  until  it  has  either  been  con- 
demned or  released  by  process  of  law,  or  in  manner  hereinafter 
mentioned.  The  owner  of  the  ship  so  detained,  or  his  agent, 
may  apply  to  the  Court  of  Admiralty  for  its  release,  and  the 
court  shall,  as  soon  as  possible,  put  the  matter  of  such  seizure 
and  detention  in  course  of  trial  between  the  applicant  and  the 
Crown. 

If  the  appUcant  estabhsh  to  the  satisfaction  of  the  court  that 
the  ship  was  not,  and  is  not  being  built,  commissioned,  or 
equipped,  or  intended  to  be  despatched  contrary  to  this  Act, 
the  ship  shall  be  released  and  restored. 

If  the  applicant  fail  to  estabhsh  to  the  satisfaction  of  the 
court  that  the  ship  was  not,  and  is  not  being  built,  commis- 
sioned, or  equipped,  or  intended  to  bo  despatched  contrary  to 
this  Act,  then  the  ship  shall  be  detained  till  released  by  order 
of  the  Secretary  of  State,  or  chief  executive  authority. 


THE  LAW  OF  NEUTRALITY  295 

The  court  may  in  cases  where  no  proceedings  are  pending 
for  its  condemnation  release  any  ship  detained  under  this  sec- 
tion on  the  owner  giving  security  to  the  satisfaction  of  the  court 
that  the  ship  shall  not  be  employed  contrary  to  this  Act,  not- 
withstanding that  the  applicant  may  have  failed  to  establish 
to  the  satisfaction  of  the  court  that  the  ship  was  not,  and  is  not 
being  built,  commissioned,  or  intended  to  be  despatched  con- 
trary to  this  Act.  The  Secretary  of  State  or  the  chief  executive 
authority  may  hkewise  release  any  ship  detained  under  this 
section  on  the  owner  giving  security  to  the  satisfaction  of  such 
Secretary  of  State  or  chief  executive  authority  that  the  ship 
shall  not  be  employed  contrary  to  this  Act,  or  may  release  the 
ship  without  such  security  if  the  Secretary  of  State  or  chief 
executive  authority  think  fit  so  to  release  the  same. 

If  the  court  be  of  opinion  that  there  was  not  reasonable  and 
probable  cause  for  the  detention,  and  if  no  such  cause  appear 
in  the  course  of  the  proceedings  the  court  shall  have  power  to 
declare  that  the  owner  is  to  be  indemnified  by  the  payment  of 
costs  and  damages  in  respect  of  the  detention,  the  amount 
thereof  to  be  assessed  by  the  court,  and  any  amount  so  assessed 
shall  be  payable  by  the  Commissioners  of  the  Treasury  out  of 
any  moneys  legally  applicable  for  that  purpose.  The  Court  of 
Admiralty  shall  also  have  power  to  make  a  Uke  order  for  the 
indemnity  of  the  owner,  on  the  application  of  such  owner  to 
the  court,  in  a  summary  way,  in  cases  where  the  ship  is  released 
by  the  order  of  the  Secretary  of  State  or  the  chief  executive 
authority,  before  any  apphcation  is  made  by  the  owner  or  his 
agent  to  the  court  for  such  release. 

Nothing  in  this  section  contained  shall  affect  any  proceedings 
instituted  or  to  be  instituted  for  the  condemnation  of  any  ship 
detained  under  this  section  where  such  ship  is  liable  to  forfei- 
ture, subject  to  this  provision,  that  if  such  ship  is  restored  in 
pursuance  of  this  section  all  proceedings  for  such  condemnation 
shall  be  stayed;  and  where  the  court  declares  that  the  owner 
is  to  be  indemnified  by  the  payment  of  costs  and  damages  for 
the  detainer,  all  costs,  charges,  and  expenses  incurred  by  such 
owner  in  or  about  any  proceeding  for  the  condemnation  of 


296  DOCUMENTS  ON  INTERNATIONAL  LAW 

such  ship  shall  be  added  to  the  costs  and  damages  payable  to 
him  in  respect  of  the  detention  of  the  ship. 

Nothing  in  this  section  contained  shall  apply  to  any  foreign 
noncommissioned  ship  despatched  from  any  port  of  Her  Maj- 
esty's dominions  after  having  come  within  them  under  stress  of 
weather  or  in  the  course  of  a  peaceful  voyage,  and  upon  which 
ship  no  fitting-out  or  equipping  of  a  warlike  character  has 
taken  place  in  this  country. 

24.  Where  it  is  represented  to  any  local  authority,  as  defined 
by  this  Act,  and  such  local  authority  believes  the  representa- 
tion, that  there  is  a  reasonable  and  probable  cause  for  believing 
that  a  ship  within  Her  Majesty's  dominions  has  been  or  is  being 
built,  commissioned,  or  equipped  contrary  to  this  Act,  and  is 
about  to  be  taken  beyond  the  limits  of  such  dominions,  or  that 
a  ship  is  about  to  be  despatched  contrary  to  this  Act,  it  shall 
be  the  duty  of  such  local  authority  to  detain  such  ship,  and 
forthwith  to  communicate  the  fact  of  such  detention  to  the 
Secretary  of  State  or  chief  executive  authority. 

Upon  the  receipt  of  such  communication  the  Secretary  of 
State  or  chief  executive  authority  may  order  the  ship  to  be 
released  if  he  thinks  there  is  no  cause  for  detaining  her,  but 
if  satisfied  that  there  is  reasonable  and  probable  cause  for 
believing  that  such  ship  was  built,  commissioned,  or  equipped 
or  intended  to  be  despatched  in  contravention  of  this  Act,  he 
shall  issue  his  warrant  stating  that  there  is  reasonable  and 
probable  cause  for  believing  as  aforesaid,  and  upon  such  war- 
rant being  issued  further  proceedings  shall  be  had  as  in  cases 
where  the  seizure  or  detention  has  taken  place  on  a  warrant 
issued  by  the  Secretary  of  State  without  any  communication 
from  the  local  authority. 

Where  the  Secretary  of  State  or  chief  executive  authority 
orders  the  ship  to  be  released  on  the  receipt  of  a  communication 
from  the  local  authority  without  issuing  his  warrant,  the  owTier 
of  the  ship  shall  be  indemnified  by  the  payment  of  costs  and 
damages  in  respect  of  the  detention,  upon  application  to  the 
Court  of  Admiralty,  in  a  summary  way  in  like  manner  as  he  is 
entitled  to  be  indemnified  where  the  Secretary  of  State  having 


THE  LAW  OF  NEUTRALITY  297 

issued  his  warrant  under  this  Act  releases  the  ship  before  any 
application  is  made  by  the  owner  or  his  agent  to  the  court  for 
such  release. 

25.  The  Secretary  of  State  or  the  chief  executive  authority 
may,  by  warrant,  empower  any  person  to  enter  any  dockyard 
or  other  place  within  Her  Majesty's  dominions  and  enquire  as 
to  the  destination  of  any  ship  which  may  appear  to  him  to  be 
intended  to  be  employed  in  the  naval  or  military  service  of 
any  foreign  State  at  war  with  a  friendly  State,  and  to  search 
such  ship. 

26.  Any  powers  or  jurisdiction  by  this  Act  given  to  the 
Secretary  of  State  may  be  exercised  by  him  throughout  the 
dominions  of  Her  Majesty,  and  such  powers  or  jurisdiction 
may  also  be  exercised  by  any  of  the  following  officers,  in  this 
Act  referred  to  as  the  chief  executive  authority  within  their 
respective  jurisdictions;  that  is  to  say,  — 

(1)  In  Ireland  by  the  Lord  Lieutenant  or  other  the  chief 
governor  or  governors  of  Ireland  for  the  time  being,  or  the 
Chief  Secretary  to  the  Lord  Lieutenant: 

(2)  In  Jersey  by  the  Lieutenant  Governor : 

(3)  In  Guernsey,  Alderney,  and  Sark,  and  the  dependent 
islands  by  the  Lieutenant  Governor: 

(4)  In  the  Isle  of  Man  by  the  Lieutenant  Governor: 

(5)  In  any  British  possession  by  the  Governor. 

A  copy  of  any  warrant  issued  by  a  Secretary  of  State  or  by 
any  officer  authorized  in  pursuance  of  this  Act  to  issue  such 
warrant  in  Ireland,  the  Channel  Islands,  or  the  Isle  of  Man, 
shall  be  laid  before  Parliament. 

27.  An  appeal  may  be  had  from  any  decision  of  a  Court  of 
Admiralty  under  this  Act  to  the  same  tribunal  and  in  the 
same  manner  to  and  in  which  an  appeal  may  be  had  in  cases 
within  the  ordinary  jurisdiction  of  the  court  as  a  Court  of 
Admiralty. 

28.  Subject  to  the  provisions  of  this  Act  provided  for  the 
award  of  damages  in  certain  cases  in  respect  of  the  seizure  or 
detention  of  a  ship  by  the  Court  of  Admiralty  no  damages  shall 
be  payable,  and  no  officer  or  local  authority  shall  be  respon- 


298  DOCUMENTS  ON  INTERNATIONAL  LAW 

sible,  either  civilly  or  criminall3%  in  respect  of  the  seizure  or 
detention  of  any  ship  in  pursuance  of  this  Act. 

29.  The  Secretary  of  State  shall  not,  nor  shall  the  chief 
executive  authority,  be  responsible  in  any  action  or  other  legal 
proceedings  whatsoever  for  any  warrant  issued  by  him  in  pur- 
suance of  this  Act,  or  be  examinable  as  a  witness,  except  at  his 
own  request,  in  any  court  of  justice  in  respect  of  the  circum- 
stances whi(!h  led  to  the  issue  of  the  warrant. 

Interpretation  Clause 

30.  In  this  Act,  if  not  inconsistent  with  the  context,  the 
following  terms  have  the  meanings  hereinafter  respectively 
assigned  to  them;  that  is  to  say,  — 

'Foreign  State'  includes  any  foreign  prince,  colony,  prov- 
ince, or  part  of  any  province  or  people,  or  any  person  or  persons 
exercising,  or  assuming  to  exercise  the  powers  of  government 
in  or  over  any  foreign  country,  colony,  province,  or  part  of  any 
province  or  people:  'Military  Service'  shall  include  military 
telegraphy  and  any  other  employment  whatever,  in  or  in  con- 
nection with,  any  military  operation:  'Naval  Service'  shall, 
as  respects  a  person,  include  service  as  a  marine,  employment 
as  a  pilot  in  piloting  or  directing  the  course  of  a  ship  of  war 
or  other  ship  when  such  ship  of  war  or  other  ship  is  being  used 
in  any  military  or  naval  operation,  and  an}^  employment  what- 
ever on  board  a  ship  of  war,  transport,  store-ship,  privateer  or 
ship  under  letters  of  marque;  and  as  respects  a  ship,  includes 
any  uses  of  a  ship  as  a  transport,  store-ship,  privateer  or  ship 
under  letters  of  marque: 

'United  Kingdom'  includes  the  Isle  of  Man,  the  Channel 
Islands,  and  other  adjacent  islands:  'British  possession'  means 
any  territory,  colony,  or  place  being  part  of  Her  Majesty's 
dominions,  and  not  part  of  the  United  Kingdom  as  defined  by 
this  Act.  '  The  Secretary  of  State '  shall  mean  any  one  of  Her 
Majesty's  principal  Secretaries  of  State:  'The  (}overnor'  shall, 
as  respects  India,  mean  the  Governor-General  or  the  Gov- 
ernor of  any  Presidency,  and  where  a  British  possession  con- 
sists of  several  constituent  colonies,  mean  the  Governor-General 


THE  LAW  OF  NEUTRALITY  299 

of  the  whole  possession  or  the  Governor  of  any  of  the  constituent 
colonies,  and  as  respects  any  other  British  possession,  it  shall 
mean  the  officer  for  the  time  being  administering  the  govern- 
ment of  such  possession,  also  any  person  acting  for  or  in  the 
capacity  of  a  Governor  shall  be  included  under  the  term 
'  Governor ' : 

'Court  of.  Admiralty' shall  mean  the  high  Court  of  Admiralty 
of  England  or  Ireland,  the  Court  of  Session  of  Scotland,  or  any 
Vice-Admiralty  Court  within  Her  Majesty's  dominions:  'Ship' 
shall  include  any  description  of  boat,  vessel,  floating  battery, 
or  floating  craft;  also  any  description  of  boat,  vessel,  or  other 
craft  or  battery,  made  to  move  either  on  the  surface  of,  or  un- 
der water,  or  sometimes  on  the  surface  of,  and  sometimes 
under  water. 

'Building'  in  relation  to  the  ship  shall  include  the  doing 
any  act  towards  or  incidental  to  the  construction  of  a  ship, 
and  all  words  having  relation  to  building  shall  be  construed 
accordingly : 

'Equipping'  in  relation  to  a  ship,  shall  include  the  furnish- 
ing a  ship  with  any  tackle,  apparel,  furniture,  provisions,  arms, 
munitions,  or  stores,  or  any  other  thing  which  is  used  in  or 
about  a  ship  for  the  purpose  of  fitting  or  adapting  her  for  the 
sea  or  for  naval  service,  and  all  words  relating  to  equipping  shall 
be  construed  accordingly: 

'Ship  and  equipment'  shall  include  a  ship  and  everything 
in  or  belonging  to  a  ship: 

'Master'  shall  include  any  person  having  the  charge  or 
command  of  a  ship. 

Repeal  of  Acts,  and  Saving  Clauses 
3L  From  and  after  the  commencement  of  this  Act,  an  Act 
passed  in  the  59th  year  of  the  reign  of  His  Late  Majesty  King 
George  the  Third,  chapter  69,  entitled  'An  Act  to  prevent  the 
enlistment  and  engagement  of  His  Majesty's  subjects  to  serve 
in  foreign  service,  and  the  fitting-out  or  equipping,  in  His 
Majesty's  dominions,  vessels  for  warlike  purposes,  without  His 
Majesty's  licence'  shall  be  repealed:  Provided  that  such  repeal 


300  DOCUMENTS  ON  INTERNATIONAL  LAW 

shall  not  affect  any  penalty,  forfeiture,  or  otiier  punishment 
incurred  or  to  be  incurred  in  respect  of  any  offence  committed 
before  this  Act  comes  into  operation,  nor  the  institution  of 
any  investigation  or  legal  proceedings  or  any  other  remedy 
for  enforcing  any  such  penalty,  forfeiture,  or  punishment  as 
aforesaid. 

32.  Nothing  in  this  Act  contained  shall  subject,  to  forfeiture 
an}^  commissioned  ship  of  any  foreign  State,  or  give  to  any 
British  court  over  or  in  respect  of  any  ship  entitled  to  re- 
cognition as  a  commissioned  ship  of  any  foreign  State  any 
jurisdiction  which  it  would  not  have  had  if  this  Act  had  not 
passed. 

33.  Nothing  in  this  Act  contained  shall  extend  or  be  con- 
strued to  extend  to  subject  to  any  penalty  any  person  who 
enters  into  the  military  service  of  any  prince,  State  or  poten- 
tate in  Asia,  with  such  leave  or  licence  as  is  for  the  time  being 
required  by  law  in  the  case  of  subjects  of  Her  Majesty  enter- 
ing into  the  military  service  of  princes,  States  or  potentates  in 
Asia. 

3.  British  Proclamation  of  Neutrality  in  the  War  of   1904-1905 
between  Russia  and  Japan 

By  the  King  —  A  Proclamation 

Edward,  R.  and  I. 

Whereas  We  are  happily  at  Peace  with  all  Sovereigns,  Powers, 
and  States: 

And  whereas  a  State  of  War  unhappily  exists  between  his 
Majesty  The  Emperor  of  All  The  Russias,  and  his  Majesty 
The  Emperor  of  Japan,  and  between  their  respective  Subjects, 
and  others  inhabiting  within  their  Countries,  Territories,  or 
Dominions: 

And  whereas  We  are  on  Terms  of  Friendship  and  Amicable 
intercourse  with  each  of  these  Powers,  and  with  their  several 
Subjects  and  others  inhabiting  within  their  Countries,  Terri- 
tories, or  Dominions: 


THE  LAW  OF  NEUTRALITY  301 

And  whereas  great  Numbers  of  Our  Loyal  Subjects  reside 
and  carry  on  Commerce,  and  possess  Property  and  Establish- 
ments, and  enjoy  various  Rights  and  Privileges,  within  the 
Dominions  of  each  of  the  aforesaid  Powers,  protected  by  the 
Faith  of  Treaties  between  Us  and  each  of  the  aforesaid  Powers : 

And  whereas  We,  being  desirous  of  preserving  to  Our  Sub- 
jects the  Blessings  of  Peace,  which  they  now  happily  enjoy,  are 
firmly  purposed  and  determined  to  maintain  a  strict  and  im- 
partial Neutrality  in  the  said  State  of  War  unhappily  existing 
between  the  aforesaid  Powers: 

We,  therefore,  have  thought  fit,  by  and  with  the  advice  of 
Our  Privy  Council,  to  issue  this  Our  Royal  Proclamation : 

And  We  do  hereby  strictly  charge  and  command  all  Our 
loving  Subjects  to  govern  themselves  accordingly,  and  to 
observe  a  strict  Neutrality  in  and  during  the  aforesaid  War, 
and  to  abstain  from  violating  or  contravening  either  the  Laws 
and  Statutes  of  the  Realm  in  this  behalf,  or  the  Law  of  Nations 
in  relation  hereto,  as  they  will  answer  to  the  contrary  at  their 
Peril: 

And  whereas  in  and  by  a  certain  Statute  made  and  passed 
in  a  Session  of  Parliament  holden  in  the  33rd  and  34th  year  of 
the  reign  of  Her  Late  Majesty  Queen  Victoria,  intituled  "An 
Act  to  Regulate  the  conduct  of  Her  Majesty's  Subjects  during 
the  existence  of  Hostilities  between  Foreign  States  with  which 
her  Majesty  is  at  peace,"  it  is,  among  other  things,  declared  and 
enacted  as  follows;  — 

"This  Act  shall  extend  to  all  the  Dominions  of  Her  Majesty, 
including  the  adjacent  territorial  Waters:"  (Here  follows  a 
recitation  of  sections  4  to  12  of  the  Foreign  Enlistment  Act, 
for  which  see  No.  2  of  this  Part,  pages  286-291.) 

And  whereas  by  the  said  Act  it  is  further  provided  that  Ships 
built,  commissioned,  equipped,  or  despatched  in  contravention 
of  the  said  Act,  may  be  condemned  and  forfeited  by  Judgment 
of  the  Court  of  Admiralty;  and  that  if  the  Secretary  of  State 
or  Chief  Executive  Authority  is  satisfied  that  there  is  a  reason- 
able and  probable  cause  for  believing  that  a  Ship  within  Our 
Dominion  has  been  or  is  being  built,  commissioned,  or  equipped. 


302  DOCUMENTS  ON  INTERNATIONAL  LAW 

contrary  to  the  said  Act,  and  is  about  to  be  taken  beyond  the 
Hmits  of  such  Dominions,  or  that  a  Ship  is  ay)out  to  be  de- 
spatched contrary  to  the  Act,  such  Secretary  of  State  or  Chief 
Executive  Authority  shall  have  power  to  issue  a  warrant  author- 
ising the  seizure  and  search  of  such  Ship  and  her  detention 
until  she  has  either  been  condemned  or  released  by  Process  of 
Law.  And  whereas  certain  powers  of  seizure  and  detention 
are  conferred  by  the  said  Act  on  certain  Local  Authorities: 

Now,  in  order  that  none  of  Our  Subjects  may  unwarily 
render  themselves  liable  to  the  Penalties  imposed  by  the  said 
Statute,  We  do  hereby  strictly  command  that  no  Person  or 
Persons  whatsoever  do  commit  any  Act,  Matter,  or  Thing  what- 
soever contrary  to  the  Provisions  of  the  said  Statute,  upon  pain 
of  the  several  Penalties  by  the  said  Statute  imposed  and  of 
Our  high  Displeasure. 

And  We  do  hereby  further  warn  and  admonish  all  Our  Loving 
Subjects,  and  all  Persons  whatsoever  entitled  to  Our  Protec- 
tion, to  observe  towards  each  of  the  aforesaid  Powers,  their 
Subjects  and  Territories,  and  towards  all  Belligerents  whatso- 
ever with  whom  We  are  at  Peace,  the  Duties  of  Neutrality; 
and  to  respect,  in  all  and  each  of  them,  the  Exercise  of  Bel- 
ligerent Rights. 

And  We  hereby  further  warn  all  Our  Loving  Subjects,  and  all 
Persons  whatsoever  entitled  to  Our  Protection,  that  if  any  of 
them  shall  presume,  in  contempt  of  this  Our  Royal  Proclama- 
tion, and  of  Our  high  Displeasure,  to  do  any  Acts  in  derogation 
of  their  Duty  as  Subjects  of  a  Neutral  Power  in  a  War  between 
other  Powers,  or  in  violation  or  contravention  of  the  Law  of 
Nations  in  that  Behalf,  as  more  especially  by  breaking,  or 
endeavouring  to  break,  any  Blockade  Lawfully  and  actually 
established  by  or  on  behalf  of  either  of  the  said  Powers,  or  by 
carrying  Officers,  Soldiers,  Despatches,  Arms,  Ammunition, 
Military  Stores  or  Materials,  or  any  Article  or  Articles  con- 
sidered and  deemed  to  be  Contraband  of  War  according  to  the 
Law  of  Modern  Usages  of  Nations,  for  the  Use  or  Service  of 
either  of  the  said  Powers,  that  all  Persons  so  offending,  together 
with  their  Ships  and  Goods,  will  rightfully  incur  and  be  justly 


THE  LAW  OF  NEUTRALITY  303 

liable  to  hostile  Capture,  and  to  the  Penalties  denounced  by  the 
Law  of  Nations  in  that  Behalf. 

And  We  do  hereby  give  Notice  that  all  Our  Subjects  and 
Persons  entitled  to  Our  Protection  who  may  misconduct  them- 
selves in  the  Premises  will  do  so  at  their  peril,  and  of  their  own 
wrong;  and  that  they  will  in  no  wise  obtain  any  Protection 
from  Us  against  such  Capture  or  such  Penalties  as  aforesaid, 
but  will,  on  the  contrary,  incur  Our  high  Displeasure  by  such 
Misconduct. 

Given  at  Our  Court  at  Buckingham  Palace,  this  eleventh 
day  of  February,  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  four,  and  in  the  fourth  year  of  Our  Reign. 

GOD    SAVE   THE    KING 


4.   British  Rules  of  Neutrality  promulgated  along  with  the 

Proclamation  of  Neutrality  in  the  Russo-Japanese 

War  of  1904-1905 

The  Most  Honourable  the  Marquess  of  Lansdowne  to  the 
Lords  Commissioners  of  the  Admiralty:  — 

Foreign  Office,  February  10,  1904. 

My  Lords,  —  His  Majesty  being  fully  determined  to  observe 
the  duties  of  neutrality  during  the  existing  state  of  war  between 
Russia  and  Japan;  being,  moreover,  resolved  to  prevent,  as  far 
as  possible,  the  use  of  His  Majesty's  harbours,  ports,  and  coasts, 
and  the  waters  within  His  Majesty's  territorial  jurisdiction,  in 
aid  of  the  warlike  purposes  of  either  belligerent,  has  commanded 
me  to  communicate  to  your  Lordships,  for  your  guidance,  the 
following  Rules,  which  are  to  be  treated  and  enforced  as  His 
Majesty's  orders  and  directions:  — 

Rule  1.  During  the  continuance  of  the  present  state  of  war, 
all  ships  of  war  of  either  belligerent  are  prohibited  from  making 
use  of  any  port  or  roadstead  in  the  United  I^ingdom,  the  Isle 
of  Man,  or  the  Channel  Islands,  or  in  any  of  His  Majesty's 
colonies  or  foreign  possessions  or  dependencies,  or  of  any  waters 


304  DOCUMENTS  ON  INTERNATIONAL  LAW 

subject  to  the  territorial  jurisdiction  of  the  British  Crown,  as 
a  station  or  place  of  resort  for  any  warlike  purpose,  or  for  the 
purpose  of  obtaining  any  facilities  for  warlike  equipment;  and 
no  ship  of  war  of  either  belligerent  shall  hereafter  be  permitted 
to  leave  any  such  port,  roadstead,  or  waters  from  which  any 
vessel  of  the  other  belligerent  (whether  the  same  shall  be  a  ship 
of  war  or  a  merchant  ship)  shall  have  previously  departed  until 
after  the  expiration  of  at  least  twenty-four  hours  from  the 
departure  of  such  last-mentioned  vessel  beyond  the  territorial 
jurisdiction  of  His  Majesty. 

Rule  2.  If  there  is  now  in  any  such  port,  roadstead,  or  waters 
subject  to  the  territorial  jurisdiction  of  the  British  Crown  any 
ship  of  war  of  either  belligerent,  such  ship  of  war  shall  leave 
such  port,  roadstead,  or  waters  \^dthin  such  time  not  less  than 
twenty-four  hours  as  shall  be  reasonable,  having  regard  to  all 
the  circumstances  and  the  condition  of  such  ship  as  to  repairs, 
provisions,  or  things  necessary  for  the  subsistence  of  her  crew; 
and  if  after  the  date  hereof  any  ship  of  war  of  either  belligerent 
shall  enter  any  such  port,  roadstead,  or  waters,  subject  to  the 
territorial  jurisdiction  of  the  British  Crown,  such  ship  shall 
depart  and  put  to  sea  within  twenty-four  hours  after  her  entrance 
into  any  such  port,  roadstead,  or  waters,  except  in  case  of  stress 
of  weather,  or  of  her  requiring  provisions  or  things  necessary 
for  the  subsistence  of  her  crew,  or  repairs;  in  either  of  which 
cases  the  authorities  of  the  port,  or  of  the  nearest  port  (as  the 
case  may  be)  shall  require  her  to  put  to  sea  as  soon  as  possible 
after  the  expiration  of  such  period  of  twenty-four  hours,  without 
permitting  her  to  take  in  supplies  beyond  what  may  be  neces- 
sary for  her  immediate  use ;  and  no  such  vessel  which  may  have 
been  allowed  to  remain  within  British  waters  for  the  purpose  of 
repair  shall  continue  in  any  such  port,  roadstead,  or  waters,  for 
a  longer  period  than  twenty-four  hours  after  her  necessary 
repairs  shall  have  been  completed.  Provided,  nevertheless, 
that  in  all  cases,  in  which  there  shall  be  any  vessels  (whether 
ships  of  war  or  merchant  ships)  of  both  the  said  belligerent 
parties  in  the  same  port,  roadstead,  or  waters  within  the  terri- 
torial jurisdiction  of  His  Majesty,  there  shall  be  an  interval 


THE  LAW  OF  NEUTRALITY  305 

of  not  less  than  twenty -four  hours  between  the  departure  there- 
from of  any  such  vessel  (whether  a  ship  of  war  or  merchant 
ship)  of  the  one  belligerent,  and  the  subsequent  departure 
therefrom  of  any  ship  of  war  of  the  other  belligerent;  and  the 
time  hereby  limited  for  the  departure  of  such  ships  of  war 
respectively  shall  always,  in  case  of  necessity,  be  extended  so 
far  as  may  be  requisite  for  giving  effect  to  this  proviso,  but  no 
further  or  otherwise. 

Rule  3.  No  ship  of  war  of  either  belligerent  shall  hereafter 
be  permitted,  while  in  any  such  port,  roadstead,  or  waters 
subject  to  the  territorial  jurisdiction  of  His  Majesty,  to  take 
in  any  supplies,  except  provisions  and  such  other  things  as  may 
be  requisite  for  the  subsistence  of  her  crew,  and  except  so 
much  coal  only  as  may  be  sufficient  to  carry  such  vessel  to  the 
nearest  port  of  her  own  country,  or  to  some  nearer  named 
neutral  destination,  and  no  coal  shall  again  be  supplied  to  any 
such  ship  of  war  in  the  same  or  any  other  port,  roadstead,  or 
waters  subject  to  the  territorial  jurisdiction  of  His  Majesty, 
without  special  permission,  until  after  the  expiration  of  three 
months  from  the  time  when  such  coal  may  have  been  last  sup- 
plied to  her  within  British  waters  as  aforesaid. 

Rule  4-  Armed  ships  of  either  belligerents  are  interdicted 
from  carrying  prizes  made  by  them  into  the  ports,  harbours, 
roadsteads,  or  waters  of  the  United  Kingdom,  the  Isle  of  Man, 
the  Channel  Islands,  or  any  of  His  Majesty's  Colonies  or 
possessions  abroad. 

The  Governor  or  other  chief  authority  of  each  of  His  Majesty's 
territories  or  possessions  beyond  the  seas  shall  forthwith  notify 
and  publish  the  above  Rules. 

•  I  have,  etc., 

Lansdowne. 

Note.  —  The  letter  given  above  was  sent  from  the  Foreign  Office  to 
the  Admiralty,  Treasury,  Home  Office,  Colonial  Office,  War  Office,  India 
Office,  Scottish  Office,  and  Board  of  Trade. 


306  DOCUMENTS  ON  INTERNATIONAL  LAW 

5.   The  Hague  Convention  concerning  the  Rights  and  Duties  of 
Neutral  Powers  and  Persons  in  War  on  Land 

Chapter  I  —  The  Rights  and  Duties  of 
Neutral  Powers 

Article  1 
The  territory  of  neutral  Powers  is  inviolable. 

Article  2 
Belligerents  are  forbidden  to  move  troops  or  convoj^s,  whether 
of  munitions  of  war  or  of  supplies,  across  the  territory  of  a 
neutral  Power. 

Article  3 

BeUigerents  are  likewise  forbidden  to:  — 

(a)  Erect  on  the  territory  of  a  neutral  Power  a  wireless 
telegraphy  station  or  any  apparatus  for  the  purpose  of  com- 
municating with  belligerent  forces  on  land  or  sea; 

(6)  Use  any  installation  of  this  kind  established  by  them  for 
purely  military  purposes  on  the  territory  of  a  neutral  Power 
l)efore  the  war,  and  not  previously  opened  for  the  service  of 
public  messages. 

Article  4 

Corps  of  combatants  must  not  be  formed,  nor  recruiting 
agencies  opened,  on  the  territory  of  a  neutral  Power,  to  assist 
the  belligerents. 

Article  5 

A  neutral  Power  must  not  allow  any  of  the  acts  referred  to 
in  Articles  2  to  4  to  occur  on  its  territory. 

It  is  not  called  upon  to  punish  acts  in  violation  of  neutrality 
unless  such  acts  have  been  committed  on  its  own  territory. 

Article  6 

The  responsibility  of  a  neutral  Power  is  not  involved  by  the 
mere  fact  that  persons  cross  the  frontier  individually  in  order 
to  offer  their  services  to  one  of  the  belligerents. 


THE  LAW  OF  NEUTRALITY  307 

Article  7 

A  neutral  Power  is  not  bound  to  prevent  the  export  or  transit 
for  either  belhgerent,  of  arms,  munitions  of  war,  or,  in  general, 
of  anything  which  could  be  of  use  to  an  army  or  fleet. 

Article  8 

A  neutral  Power  is  not  bound  to  forbid  to  restrict  the  use  on 
behalf  of  belligerents  of  telegraph  or  telephone  cables,  or  of 
wireless  telegraphy  apparatus,  belonging  to  it  or  to  Companies 
or  to  private  individuals. 

Article  9 

A  neutral  Power  must  apply  impartially  to  the  belligerents 
every  restriction  or  prohibition  which  it  may  enact  in  regard  to 
the  matters  referred  to  in  Articles  7  and  8. 

The  neutral  Power  shall  see  that  the  above  obligation  is 
observed  by  Companies  or  private  owners  of  telegraph  or  tele- 
phone cables  or  wireless  telegraphy  apparatus. 

Article  10 

The  fact  of  a  neutral  Power  resisting,  even  by  force,  attempts 
to  violate  its  neutrality  cannot  be  regarded  as  a  hostile  act. 

Chapter  II  —  Internment  of  Belligerents  and  Care  of  the 
Wounded  in  Neutral  Territory 

Article  11 

A  neutral  Power  which  receives  on  its  territory  troops  belong- 
ing to  the  belligerent  armies  shall  intern  them,  as  far  as  possible, 
at  a  distance  from  the  theatre  of  war. 

It  may  keep  them  in  camps  and  may  even  confine  them  in 
fortresses  or  in  places  set  apart  for  the  purpose. 

It  shall  decide  whether  officers  may  be  left  free  on  giv- 
ing their  parole  not  to  leave  the  neutral  territory  without 
permission. 


308  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  12 

In  default  of  special  Agreement,  the  neutral  Power  shall 
supply  the  interned  with  the  food,  clotliing  and  relief  which 
the  dictates  of  humanity  prescribe. 

At  the  conclusion  of  peace  the  expenses  caused  by  the 
internment  shall  be  made  good. 

Article  13 

A  neutral  Power  which  receives  escaped  prisoners  of  war 
shall  leave  them  at  liberty.  If  it  allows  them  to  remain  in  its 
territory  it  may  assign  them  a  place  of  residence. 

The  same  rule  applies  to  prisoners  of  war  brought  by  troops 
taking  refuge  in  the  territory  of  a  neutral  Power. 

Article  14 

A  neutral  Power  may  authorize  the  passage  into  its  territory 
of  the  sick  and  wounded  belonging  to  the  belligerent  armies, 
on  condition  that  the  trains  or  other  methods  of  transport  by 
which  they  are  conveyed  shall  carry  neither  combatants  nor 
war  material.  In  such  a  case,  the  neutral  Power  is  bound  to 
take  whatever  measures  of  safety  and  control  are  necessary  for 
the  purpose. 

The  sick  and  wounded  of  one  belligerent  brought  under  these 
conditions  into  neutral  territory  by  the  other  belligerent  must 
be  so  kept  by  the  neutral  Power  as  to  ensure  their  taking  no 
further  part  in  the  military  operations.  The  same  duty  shall 
devolve  on  the  neutral  State  with  regard  to  the  sick  and  wounded 
of  the  other  army  who  may  be  committed  to  its  care. 

Article  15 
The  Geneva  Convention  applies  to  the  sick  and  wounded  who 
are  interned  in  neutral  territory. 

Chapter  III  —  Neutral  Persons 
Article  16 
The  subjects  or  citizens  of  a  State  which  is  not  taking  part 
in  the  war  are  deemed  neutrals. 


THE  LAW  OF  NEUTRALITY  309 

Article  17 
A  neutral  cannot  claim  the  benefit  of  his  neutrality: 

(a)  If  he  commits  hostile  acts  against  a  belligerent; 

(b)  If  he  commits  acts  in  favour  of  a  belligerent,  particularly 
if  he  voluntarily  enlists  in  the  ranks  of  the  armed  force  of  one 
of  the  parties. 

In  such  case,  the  neutral  shall  not  be  more  severely  treated 
by  the  belligerent  as  against  whom  he  has  abandoned  his 
neutrality  than  a  subject  or  citizen  of  the  other  belligerent 
State  could  be  for  the  same  act. 

Article  18 

The  following  shall  not  be  considered  as  acts  committed  in 
favour  of  one  belligerent  within  the  meaning  of  Article  17, 
letter   (6): 

(a)  The  furnishing  of  supplies  or  the  making  of  loans  to  one 
of  the  belligerents,  provided  that  the  person  so  doing  neither 
lives  in  the  territory  of  the  other  party  nor  in  the  territory 
occupied  by  it,  and  that  the  supplies  do  not  come  from  such 
territory; 

(6)  Services  rendered  in  matters  of  police  or  civil  adminis- 
tration. 

Chapter  IV  —  Railway  Material 
Article  19 

Railway  material  coming  from  the  territory  of  neutral  Powers, 
whether  it  be  the  property  of  the  said  Powers  or  of  Companies  or 
private  persons,  and  recognizable  as  such,  shall  not  be  requisi- 
tioned or  utilized  by  a  belligerent  except  in  so  far  as  is  absolutely 
necessary.  It  shall  be  sent  back  as  soon  as  possible  to  the 
country  of  origin. 

A  neutral  Power  may  likewise,  in  case  of  necessity,  retain 
and  utilize  to  a  dorresponding  extent  railway  material  coming 
from  the  territory  of  the  belligerent  Power. 

Compensation  shall  be  paid  on  either  side  in  proportion  to 
the  material  used,  and  to  the  period  of  usage. 


310  DOCUMENTS  ON  INTERNATIONAL  LAW 

Chapter  V  —  Final  Provisions 

Article  20 
The  provisions  of  the  present  Convention  do  not  apply  except 
between  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Note.  —  Here  follow  Articles  21-25  giving  the  usual  provisions  as 
to  ratification,  accession,  notification,  denunciation,  etc.  They  are 
printed,  mutatis  mutandis,  at  the  end  of  No.  2  in  Part  III.    (See  page  180.) 

6.   The  Hague  Convention  of  1907  concerning  the  Rights  and 
Duties  of  Neutral  Powers  in  Maritime  War 

Article  1 
BeUigerents  are  bound  to  respect  the  sovereign  rights  of 
neutral  Powers  and  to  abstain,  in  neutral  territory  or  neutral 
waters,  from  any  act  which  would,  if  knowingly  permitted  by 
any  Power,  constitute  a  violation  of  neutrahty. 

Article  2 
Any  act  of  hostiUty,  including  therein  capture  and  the  exer- 
cise of  the  right  of  search,  committed  by  belligerent  war-ships 
in  the  territorial  waters  of  a  neutral  Power,  constitutes  a  vio- 
lation of  neutrahty  and  is  strictly  forbidden. 

Article  3 

When  a  ship  has  been  captured  in  the  territorial  waters  of  a 
neutral  Power,  such  Power  must,  if  the  prize  is  still  within  its 
jurisdiction,  employ  the  means  at  its  disposal  to  release  the 
prize  with  its  officers  and  crew,  and  to  intern  the  prize  crew. 

If  the  prize  is  not  within  the  jurisdiction  of  the  neutral 
Power,  the  captor  Government,  on  the  demand  of  the  neutral 
Power,  must  hberate  the  prize  with  its  officers  and  crew. 

Article  4 
A  Prize  Court   cannot  be  estabUshed  by  a  beUigerent  on 
neutral  territory  or  on  a  vessel  in  neutral  waters. 


THE  LAW  OF  NEUTRALITY  311 

Article  5 
Belligerents  are  forbidden  to  use  neutral  ports  and  waters 
as  a  base  of  naval  operations  against  their  adversaries;  in 
particular  they  may  not  erect  wireless  telegraphy  stations  or 
any  apparatus  for  the  purpose  of  communicating  with  the 
belligerent  forces  on  land  or  sea. 

Article  6 
The  supply,  in  any  manner,  directly  or  indirectly,  of  war-ships, 
supplies,  or  ^var  material  of  any  kind  whatever,  by  a  neutral 
Power  to  a  belligerent  Power,  is  forbidden. 

Article  7 
A  neutral  Power  is  not  bound  to  prevent  the  export  or  transit, 
for  either  belligerent,  of  arms,  munitions  of  war,  or,  in  general, 
of  anything  which  could  be  of  use  to  an  army  or  fleet. 

Article  8 
A  neutral  Government  is  bound  to  employ  the  means  at  its 
disposal  to  prevent  the  fitting  out  or  arming  of  any  vessel  within 
its  jurisdiction  which  it  has  reason  to  believe  is  intended  to 
cruise,  or  engage  in  hostile  operations,  against  a  Power  with 
which  that  Government  is  at  peace.  It  is  also  bound  to  dis- 
play the  same  vigilance  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise,  or  engage  in  hostile 
operations,  which  has  been  adapted  entirely  or  partly  within 
the  said  jurisdiction  for  use  in  war. 

Article  9 

A  neutral  Power  must  apply  to  the  two  belligerents  impar- 
tially the  conditions,  restrictions,  or  prohibitions  issued  by  it 
in  regard  to  the  admission  into  its  ports,  roadsteads,  or  terri- 
torial waters,  of  belligerent  war-ships  or  of  their  prizes. 

Nevertheless,  a  neutral  Power  may  forbid  any  particular 
belligerent  vessel  which  has  failed  to  conform  to  the  orders  and 
regulations  made  by  it,  or  which  has  violated  neutrality,  to 
enter  its  ports  or  roadsteads. 


312  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  10 
The  neutrality  of  a  Power  is  not  affected  by  the  mere  passage 
through  its  territorial  waters  of  war-ships  or  prizes  belonging  to 
belligerents. 

Article  11 
A  neutral  Power  may  allow  belligerent  war-ships  to  employ 
its  licenced  pilots. 

Article  12 
In  default  of  special  provisions  to  the  contrary  in  the  legis- 
lation of  a  neutral  Power,  belligerent  war-ships  are  not  per- 
mitted to  remain  in  the  ports,  roadsteads,  or  territorial  waters 
of  the  said  Power  for  more  than  twenty-four  hours,  except  in 
the  cases  covered  by  the  present  Convention. 

Article  13 
If  a  Power  which  has  received  notice  of  the  outbreak  of  hos- 
tilities learns  that  a  belligerent  war-ship  is  in  one  of  its  ports  or 
roadsteads,  or  in  its  territorial  waters,  it  must  notify  the  said 
ship  to  depart  within  twenty-four  hours  or  within  the  time 
prescribed  by  the  local  law. 

Article  14 

A  belhgerent  war-ship  may  not  prolong  its  stay  in  a  neutral 
port  beyond  the  time  permitted  except  on  account  of  damage 
or  stress  of  weather.  It  must  depart  as  soon  as  the  cause  of  the 
delay  is  at  an  end. 

The  regulations  as  to  the  length  of  time  which  such  vessels 
may  remain  in  neutral  ports,  roadsteads,  or  waters,  do  not 
apply  to  war-ships  devoted  exclusively  to  religious,  scientific, 
or  philanthropic  purposes. 

Article  15 
In  default  of  special  provisions  to  the  contrary  in  the  legis- 
lation of  a  neutral  Power,  the  maximum  number  of  war-ships 
belonging  to  a  belligerent  which  may  be  in  one  of  the  ports  or 
roadsteads  of  that  Power  simultaneously  shall  be  three. 


THE  LAW  OF  NEUTRALITY  313 

Article  16 

When  war-ships  belonging  to  both  belligerents  are  present 
simultaneously  in  a  neutral  port  or  roadstead,  a  period  of  not 
less  than  twenty-four  hours  must  elapse  between  the  departure 
of  the  ship  belonging  to  one  belligerent  and  the  departure  of 
the  ship  belonging  to  the  other. 

The  order  of  departure  is  determined  by  the  order  of  arrival, 
unless  the  ship  which  arrived  first  is  so  circumstanced  that  an 
extension  of  its  stay  is  permissible. 

A  beUigerent  war-ship  may  not  leave  a  neutral  port  or 
roadstead  until  twenty-four  hours  after  the  departure  of  a 
merchant-ship  flying  the  flag  of  its  adversary. 

Article  17 
In  neutral  ports  and  roadsteads  belligerent  war-ships  may 
only  carry  out  such  repairs  as  are  absolutely  necessary  to  render 
them  seaworthy,  and  may  not  add  in  any  manner  whatever 
to  their  fighting  force.  The  local  authorities  of  the  neutral 
Power  shall  decide  what  repairs  are  necessary,  and  these  must 
be  carried  out  with  the  least  possible  dealy. 

Article  18 

Belligerent  war-ships  may  not  make  use  of  neutral  ports, 
roadsteads,  or  territorial  waters  for  replenishing  or  increasing 
their  supplies  of  war  material  or  their  armament,  or  for  com- 
pleting their  crews. 

Article  19 

Belligerent  war-ships  may  only  revictual  in  neutral  ports 
or  roadsteads  to  bring  up  their  supplies  to  the  peace  standard. 

Similarly  these  vessels  may  only  ship  sufficient  fuel  to  enable 
them  to  reach  the  nearest  port  in  their  own  country.  They  may, 
on  the  other  hand,  fill  up  their  bunkers  built  to  carry  fuel, 
when  in  neutral  countries  which  have  adopted  this  method  of 
determining  the  amount  of  fuel  suppfied. 

If,  in  accordance  with  the  law  of  the  neutral  Power,  the  ships 
are  not  suppfied  with  coal  within  twenty-four  hours  of  their 


314  DOCUMENTS  ON  INTERNATIONAL  LAW 

arrival,  the  duration  of  their  permitted  stay  is  extended  by 
twenty-four  hours. 

Article  20 
Belligerent  war-ships  which  have  shipped  fuel  in  a  port  be- 
longing to  a  neutral  Power  may  not  within  the  succeeding  three 
months  replenish  their  supply  in  a  port  of  the  same  Power. 

Article  21 
A  prize  may  only  be  brought  into  a  neutral  port  on  account 
of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions. 

'  It  must  leave  as  soon  as  the  circumstances  which  justified 
its  entry  are  at  an  end.  If  it  does  not,  the  neutral  Power  must 
order  it  to  leave  at  once;  should  it  fail  to  obey,  the  neutral  Power 
must  employ  the  means  at  its  disposal  to  release  it  with  its 
officers  and  crew  and  to  intern  the  prize  crew. 

Article  22 
A  neutral  Power  must,  similarly,  release  a  prize  brought  into 
one  of  its  ports  under  circumstances  other  than  those  referred 
to  in  Article  21, 

Article  23 
A  neutral  Power  may  allow  prizes  to  enter  its  ports  and  road- 
stead, whether  under  convoy  or  not,  when  they  are  brought 
there  to  be  sequestrated  pending  the  decision  of  a  Prize  Court. 
It  may  have  the  prize  taken  to  another  of  its  ports. 

If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may 
go  on  board  the  convoying  ship. 

If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at 
liberty. 

Article  24 

If,  notwithstanding  the  notification  of  the  neutral  Power,  a 
belligerent  ship  of  war  does  not  leave  a  port  where  it  is  not 
entitled  to  remain,  the  neutral  Power  is  entitled  to  take  such 
measures  as  it  considers  necessary  to  render  the  ship  incapable 
of  putting  to  sea  so  long  as  the  war  lasts,  and  the  commanding 
officer  of  the  ship  must  facilitate  the  execution  of  such  measures. 


THE  LAW  OF  NEUTRALITY  315 

When  a  belligerent  ship  is  detained  by  a  neutral  Power,  the 
officers  and  crew  are  likewise  detained. 

The  officers  and  crew  so  detained  may  be  left  in  the  ship  or 
kept  either  on  another  vessel  or  on  land,  and  may  be  subjected 
to  such  restrictions  as  it  may  appear  necessary  to  impose  upon 
them.  A  sufficient  number  of  men  must,  however,  be  always 
left  on  board  for  looking  after  the  vessel. 

The  officers  may  be  left  at  liberty  on  giving  their  word  not 
to  quit  the  neutral  territory  without  permission. 

Article  25 
A  neutral  Power  is  bound  to  exercise  such  vigilance  as  the 
means  at  its  disposal  permit  to  prevent  any  violation  of  the 
provisions  of  the  above  Articles  occurring  in  its  ports  or  road- 
steads or  in  its  waters. 

Article  26 
The  exercise  by  a  neutral  Power  of  the  rights  laid  down  in 
the  present  Convention  can  under  no  circumstances  be  con- 
sidered as  an  unfriendly  act  by  one  or  other  belligerent  who  has 
accepted  the  Articles  relating  thereto. 

Article  27 
The  Contracting  Powers  shall  communicate  to  each  other  in 
due  course  all  statutes,  orders,  and  other  enactments  defining 
in  their  respective  countries  the  situation  of  belligerent  war- 
ships in  their  ports  and  waters,  by  means  of  a  communica- 
tion addressed  to  the  Government  of  the  Netherlands,  and 
forwarded  immediately  by  that  Government  to  the  other 
Contracting  Powers. 

Article  28 
The  provisions  of  the  present  Convention  do  not  apply  except 
to  the  Contracting  Powers,  and  then  only  if  all  the  belligerents 
are  parties  to  the  Convention. 

Note. — The  usual  provisions  as  to  ratification,  accession,  denuncia- 
tion and  registration  appear  in  Articles  29-33,  which  are  the  same  as  Articles 
4-8  in  the  Convention  printed  as  No.  2  in  Part  IIL     (See  page  179.) 


316  DOCUMENTS  ON  INTERNATIONAL  LAW 

7.   Rules  with  regard  to  Submarine  Cables  in  Time  of  War, 

voted  by  the  Institute  of  International  Law  at 

Brussels  in  1902 

(1)  A  submarine  cable  connecting  two  neutral  territories  is 
inviolable. 

(2)  A  cable  connecting  the  territories  of  two  belligerents,  or 
two  parts  of  the  territory  of  one  of  the  belligerents,  can  be  cut 
everywhere  except  in  neutral  territorial  waters,  and  in  neutral- 
ized waters. 

(3)  A  cable  connecting  neutral  territory  with  the  territory 
of  one  of  the  belligerents  cannot  be  cut  in  any  case  in  neutral 
territorial  waters  or  in  neutralized  waters. 

On  the  high  seas  such  a  cable  cannot  be  cut  except  within  the 
limits  of  the  Une  of  an  effective  blockade  and  under  the  obliga- 
tion to  reestablish  the  cable  with  as  little  delay  as  possible. 
Such  a  cable  can  always  be  cut  on  the  enemy's  territory,  and  in 
his  territorial  waters  within  a  distance  of  three  marine  miles 
from  the  shore  at  low  water. 

(4)  It  is  understood  that  the  liberty  of  a  neutral  state  to 
transmit  messages  does  not  imply  the  power  to  use  it  or  permit 
its  use  so  as  to  render  assistance  to  a  belligerent. 

(5)  In  all  that  concerns  the  application  of  the  preceding  rules 
no  difference  is  to  be  made  between  cables  belonging  to  a  state 
and  cables  belonging  to  private  owners,  or  between  cables  that 
are  enemy  property  and  cables  that  are  neutral  property.  — 
{Annuaire,  1902,  pp.  331,  332.) 

8.   The  Rule  of  War  of  1756 

In  the  war  which  commenced  in  the  year  1756,  and  was  ended 
by  the  peace  of  1763,  France,  being  hard  pressed  by  our  maritime 
superiority,  and  unable  with  safety,  either  to  send  the  requisite 
supplies  to  her  West  India  Islands,  or  to  bring  their  produce 
to  the  European  Market  under  her  own  mercantile  flag,  re- 
sorted to  the  expedient  of  relaxing  her  colonial  monopoly;  and 
admitted  neutral  vessels,  under  certain  restrictions,  to  carry 


THE  LAW  OF  NEUTRALITY  317 

the  produce  of  those  islands,  to  French  or  foreign  ports  in 
Europe.  Of  course,  it  was  so  carried,  either  really  or  ostensibly, 
on  neutral  account;  the  object  being  to  avoid  capture  on  the 
passage. 

But  the  prize  courts  of  Great  Britain,  regarding  this  new 
trade  as  unwarranted  by  the  rights  of  neutrahty,  condemned 
such  vessels  as  were  captured  while  engaged  in  it,  together 
with  their  cargoes;  however  clearly  the  property  of  both  might 
appear  to  be  in  those  neutral  merchants,  on  whose  behalf  they 
were  claimed. 

As  these  vessels  were  admitted  to  a  trade,  in  which  prior  to 
the  war,  French  bottoms  only  could  be  employed,  they  were  con- 
sidered as  made  French  by  adoption:  but  the  substantial  prin- 
ciple of  the  rule  of  judgment  was  this  —  "that  a  neutral  has  no 
right  to  deliver  a  belUgerent  from  the  pressure  of  his  enemy's 
hostilities,  by  trading  with  his  colonies  in  time  of  war,  in  a  way 
that  was  prohibited  in  time  of  peace."  —  (James  Stephen,  War 
in  Disguise,  Fourth  ed.,  pp.  12,  13.) 

Note.  —  As  long  as  states  of  importance  exclude  foreign  vessels  from 
portions  of  their  sea-borne  commerce,  their  coasting  trade  for  instance, 
and  reserve  it  for  their  own  ships,  the  question  raised  by  Great  Britain 
in  1756,  and  again  in  1793,  will  crop  up  if  the  trade  is  thrown  open  to 
neutrals  during  a  war  or  in  immediate  contemplation  of  one.  At  the 
Naval  Conference  of  London  in  1908-1909  Germany  brought  the  matter 
forward.  "It  was  proposed  to  treat  as  an  enemy  merchant  vessel  a  neutral 
vessel,  making  at  the  time,  and  with  the  sanction  of  the  enemy  government, 
a  voyage  which  she  has  only  been  permitted  to  make  subsequently  to  the 
outbreak  of  hostihties  or  during  the  two  preceding  months"  {Report  of 
the  Drafting  Committee  of  the  Conference).  But  strong  opposition  to  this 
proposal  was  raised  at  once,  notably  by  the  American  delegation.  It  was 
therefore  dropped,  and  the  question  remains  unsettled. 

9.   Judgment  of  the  Supreme  Court  of  the  United  States  in  the 
Case  of  the  Olinde  Rodrignes 

What  Constitutes  an  Effective  Blockade 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 
We  are  unable  to  concur  with  the  learned  district  judge  in 
the  conclusion  that  the  blockade  of  the  port  of  San  Juan  at 


318  DOCUMENTS  ON  INTERNATIONAL  LAW 

the  time  this  steamship  was  captured  was  not  an  effective 
blockade. 

To  be  binding,  the  blockade  must  be  known,  and  the  block- 
ading force  must  be  present;  but  is  there  any  rule  of  law  de- 
termining that  the  presence  of  a  particular  force  is  essential 
in  order  to  render  a  blockade  effective?  We  do  not  think  so, 
but  on  the  contrary,  that  the  test  is  whether  the  blockade  is 
practically  effective,  and  that  that  is  a  question,  though  a 
mixed  one,  more  of  fact  than  of  law. 

The  fourth  maxim  of  the  Declaration  of  Paris  (April  16,  1856) 
was:  "Blockades,  in  order  to  be  binding,  must  be  effective, 
that  is  to  say,  maintained  by  a  force  sufficient  really  to  prevent 
access  to  the  coast  of  the  enemy."  Manifestly  this  broad  defini- 
tion was  not  intended  to  be  literally  applied.  The  object  was 
to  correct  the  abuse,  in  the  early  part  of  the  century,  of  paper 
blockades,  where  extensive  coasts  were  put  under  blockade  by 
proclamation,  without  the  presence  of  any  force,  or  an  inade- 
quate force;  and  the  question  of  what  might  be  sufficient  force 
was  necessarily  left  to  be  determined  according  to  the  particular 
circumstances. 

This  was  put  by  Lord  Russell  in  his  note  to  Mr.  Mason  of 
February  10,  1861,  thus:  "The  Declaration  of  Paris  was  in 
truth  directed  against  what  were  once  termed  'paper  blockades,' 
that  is,  blockades  not  sustained  by  any  actual  force,  or  sustained 
by  a  notoriously  inadequate  naval  force,  such  as  an  occasional 
appearance  of  a  man-of-war  in  the  offing  or  the  Uke.  .  .  .  The 
interpretation,  therefore,  placed  by  her  Majesty's  Government 
on  the  declaration  was,  that  a  blockade,  in  order  to  be  respected 
by  neutrals,  must  be  practically  effective.  ...  It  is  proper  to 
add,  that  the  same  view  of  the  meaning  and  effect  of  the  articles 
of  the  Declaration  of  Paris,  on  the  subject  of  blockades,  which 
is  above  explained,  was  taken  by  the  representative  of  the 
United  States  at  the  Court  of  St.  James  (Mr.  Dallas)  during  the 
communications  which  passed  between  the  two  governments 
some  years  before  the  present  war,  with  a  view  to  the  accession 
of  the  United  States  to  that  declaration."  Hall's  Int.  Law, 
§  260,  p.  730,  note. 


THE  LAW  OF  NEUTRALITY  319 

The  quotations  from  the  Parliamentary  debates,  of  May, 
1861,  given  by  Mr.  Dana  in  note  233  to  the  eighth  edition  of 
Wheaton  on  International  Law,  afford  interesting  illustrations 
of  what  was  considered  the  measure  of  effectiveness;  and  an 
extract  is  also  there  given  from  a  note  of  the  Department  of 
Foreign  Affairs  of  France  of  September,  1861,  in  which  that  is 
defined :  "  Forces  sufficient  to  prevent  the  ports  being  approached 
without  exposure  to  a  certain  danger." 

In  The  Mercurius,  1  C.  Rob.  80,  84,  Sir  William  Scott  stated: 
"It  is  said,  this  passage  to  the  Zuyder  Zee  was  not  in  a  state  of 
blockade;  but  the  ship  was  seized  immediately  on  entering  it; 
and  I  know  not  what  else  is  necessary  to  constitute  blockade. 
The  Powers  who  formed  the  armed  neutrality  in  the  last  war, 
understood  blockade  in  this  sense;  and  Russia,  who  was  the 
principal  party  in  that  confederacy,  described  a  place  to  be  in 
a  state  of  blockade,  when  it  is  dangerous  to  attempt  to  enter 
into  it." 

And  in  The  Frederick  Molke,  1  C.  Rob.  86,  the  same  great 
jurist  said:  "For  that  a  legal  blockade  did  exist,  results  neces- 
sarily from  these  facts,  as  nothing  farther  is  necessary  to  con- 
stitute blockade,  than  that  there  should  be  a  force  stationed  to 
prevent  communication,  and  a  due  notice,  or  prohibition  given 
to  the  party." 

Such  is  the  settled  doctrine  of  the  English  and  American 
courts  and  publicists,  and  it  is  embodied  in  the  second  of  the 
instructions  issued  by  the  Secretary  of  the  Navy,  June  20,  1898, 
General  Order  No.  492:  "A  blockade  to  be  effective  and  binding 
must  be  maintained  by  a  force  sufficient  to  render  ingress  to  or 
egress  from  the  port  dangerous." 

Clearly,  however,  it  is  not  practicable  to  define  what  degree 
of  danger  shall  constitute  a  test  of  the  efficiency  and  validity  of 
a  blockade.    It  is  enough  if  the  danger  is  real  and  apparent. 

In  The  Frandska,  2  Spinks,  128,  Dr.  Lushington,  in  passing 
on  the  question  whether  the  blockade  imposed  on  the  port  of 
Riga  was  an  effective  blockade,  said :  "  What,  then,  is  an  efficient 
blockade,  and  how  has  it  been  defined,  if,  indeed,  the  term 
'definition'  can  be  applied  to  such  a  subject?    One  definition 


320  DOCUMENTS  ON  INTERNATIONAL  LAW 

mentioned  is,  tliat  egress  or  entrance  shall  be  attended  with 
evident  danger;  another,  that  of  Chancellor  Kent  (1  Kent's 
Com.  146),  is,  that  it  shall  be  apparently  dangerous.  All  these 
definitions  are  and  must  be,  from  the  nature  of  blockades,  loose 
and  uncertain;  the  maintenance  of  a  blockade  must  always  be 
a  question  of  degree,  —  of  the  degree  of  danger  attending  ships 
going  into  or  leaving  a  blockaded  port.  Nothing  is  further  from 
my  intention,  nor,  indeed,  more  opposed  to  my  notions  of  the 
law  of  nations,  than  any  relaxation  of  the  rule  that  a  blockade 
must  be  efficiently  maintained;  but  it  is  perfectly  obvious  that 
no  force  could  bar  the  entrance  to  absolute  certainty;  that  ves- 
sels may  get  in  and  get  out  during  the  night,  or  fogs,  or  violent 
winds,  or  occasional  absence;  that  it  is  most  difficult  to  judge 
from  numbers  alone." 

"It  is  impossible,"  says  Mr.  Hall  (260),  "to  fix  with  any 
accuracy  the  amount  of  danger  in  entry  which  is  necessary  to 
preserve  the  vaHdity  of  a  blockade.  It  is  for  the  prize  courts 
of  the  belligerent  to  decide  whether  in  a  given  instance  a  vessel 
captured  for  its  breach  had  reason  to  suppose  it  to  be  non- 
existent; or  for  the  neutral  government  to  examine,  on  the 
particular  facts,  whether  it  is  proper  to  withhold  or  to  with- 
draw recognition." 

In  The  Hoffmmg,  6  C.  Rob.  112,  117,  Sir  WiUiam  Scott  said: 
"When  a  squadron  is  driven  off  by  accidents  of  weather,  which 
must  have  entered  into  the  contemplation  of  the  belligerent 
imposing  the  blockade,  there  is  no  reason  to  suppose  that  such 
a  circumstance  would  create  a  change  of  system,  since  it  could 
not  be  expected  that  any  blockade  would  continue  many  months, 
without  being  liable  to  such  temporary  interruptions.  But 
when  a  squadron  is  driven  off  by  a  superior  force,  a  new  course 
of  events  arises,  which  may  tend  to  a  very  different  disposition 
of  the  blockading  force,  and  which  introduces  therefore  a  very 
different  train  of  presumptions,  in  favour  of  the  ordinary  free- 
dom of  commercial  speculations.  In  such  case  the  neutral  mer- 
chant is  not  bound  to  foresee  or  to  conjecture  that  the  blockade 
will  be  resumed."  Undoubtedly  a  blockade  may  be  so  inade- 
quate, or  the  negligence  of  the  belligerent  in  maintaining  it 


THE  LAW  OF  NEUTRALITY  321 

may  be  of  such  a  character,  as  to  excuse  neutral  vessels  from 
the  penalties  for  its  violation.  Thus  in  the  case  of  an  alleged 
breach  of  the  blockade  of  the  island  of  Martinique,  which  had 
been  carried  on  by  a  number  of  vessels  on  the  different  stations, 
so  commmiicating  with  each  other  as  to  be  able  to  intercept  all 
vessels  attempting  to  enter  the  ports  of  the  island,  it  was  held 
that  their  withdrawal  was  a  neglect  which  "necessarily  led 
neutral  vessels  to  believe  these  ports  might  be  entered  without 
incurring  any  risk."    The  Nancy,  1  Acton,  57,  59. 

But  it  cannot  be  that  a  vessel  actually  captured  in  attempting 
to  enter  a  blockaded  port,  after  warning  entered  on  her  log  by 
a  cruiser  off  that  port  only  a  few  days  before,  could  dispute  the 
efficiency  of  the  force  to  which  she  was  subjected. 

As  we  hold  that  an  effective  blockade  is  a  blockade  so  effec- 
tive as  to  make  it  dangerous  in  fact  for  vessels  to  attempt  to 
enter  the  blockaded  port,  it  follows  that  the  question  of  effec- 
tiveness is  not  controlled  by  the  number  of  the  blockading  force. 
In  other  words,  the  position  cannot  be  maintained  that  one 
modern  cruiser  though  sufficient  in  fact  is  not  sufficient  as  matter 
of  law. 

Even  as  long  ago  as  1809,  in  The  Nancy,  1  Acton,  63,  where 
the  station  of  the  vessel  was  sometimes  off  the  port  of  Trinity 
and,  at  others,  off  another  port  more  than  seven  miles  distant, 
it  was  ruled  that :  "  Under  particular  circumstances  a  single  ves- 
sel may  be  adequate  to  maintain  the  blockade  of  one  port  and 
co-operate  with  other  vessels  at  the  same  time  in  the  blockade 
of  another  neighbouring  port";  although  there  Sir  William 
Grant  relied  on  the  opinion  of  the  commander  on  that  station 
that  the  force  was  completely  adequate  to  the  service  required 
to  be  performed. 

The  ruHng  of  Dr.  Lushington  in  The  Frandska,  above  cited, 
was  to  that  effect,  and  the  text-books  refer  to  other  instances. 

The  learned  district  judge,  in  his  opinion,  refers  to  the  treaty 
between  France  and  Denmark  of  1742,  which  provided  that 
the  entrance  to  a  blockaded  port  should  be  closed  by  at  least 
two  vessels  or  a  battery  on  shore;  to  the  treaty  of  1760  between 
Holland  and  the  Two  Sicilies  prescribing  that  at  least  six  ships 


322  DOCUMENTS  ON  INTERNATIONAL  LAW 

of  war  should  be  ranged  at  a  distance  slightly  greater  than  gun- 
shot from  the  entrance;  and  to  the  treaty  between  Prussia  and 
Denmark  of  1818,  which  stipulated  that  two  vessels  should  be 
stationed  before  every  blockaded  port;  but  we  do  not  think 
these  particular  agreements  of  special  importance  here,  and, 
indeed.  Ortolan,  by  whom  they  are  cited,  says  that  such  stipu- 
lations cannot  create  a  positive  rule  in  all  cases  even  between 
the  parties,  "since  the  number  of  vessels  necessary  to  a  complete 
investment  depends  evidently  on  the  nature  of  the  place  block- 
aded."   2  Ortolan,  4th  ed.,  330,  and  note  2. 

Nor  do  we  regard  Sir  William  Scott's  judgement  in  The 
Arthur,  1814,  1  Dodson,  423,  425,  as  of  weight  in  favour  of 
the  claimants.  In  effect  the  ruling  sustained  the  validity  of  the 
maintenance  of  blockade  by  a  single  ship,  and  the  case  was 
thus  stated:  "This  is  a  claim  made  by  one  of  his  Majesty's 
ships  to  share  as  joint-captor  in  a  prize  taken  in  the  river  Ems 
by  another  ship  belonging  to  his  Majesty,  for  a  breach  of  the 
blockade  imposed  by  the  Order  in  Council  of  the  26th  of  April, 
1809.  This  order  was,  among  others,  issued  in  the  way  of 
retaliation  for  the  measures  which  had  been  previously  adopted 
by  the  French  Government  against  the  commerce  of  this  coun- 
try. The  blockade  imposed  by  it  is  applicable  to  a  very  great 
extent  of  coast,  and  was  never  intended  to  be  maintained 
according  to  the  usual  and  regular  mode  of  enforcing  blockades, 
by  stationing  a  number  of  ships  and  forming  as  it  were  an  arch 
of  circumvallation  around  the  mouth  of  the  prohibited  port. 
There,  if  the  arch  fails  in  any  one  part,  the  blockade  itself 
fails  altogether;  but  this  species  of  blockade,  which  has  arisen 
out  of  the  violent  and  unjust  conduct  of  the  enemy,  was  main- 
tained by  a  ship  stationed  anywhere  in  the  neighbourhood  of 
the  coast,  or,  as  in  this  case,  in  the  river  itself,  observing 
and  preventing  every  vessel  that  might  endeavour  to  effect  a 
passage  up  or  down  the  river." 

Blockades  are  maritime  blockades,  or  blockades  by  sea  and 
land;  and  they  may  be  either  military  or  commercial,  or  may 
partake  of  the  nature  of  both.  The  question  of  effectiveness 
must  necessarily  depend  on  the  circumstances.     We  agree  that 


THE  LAW  OF  NEUTRALITY  323 

the  fact  of  a  single  capture  is  not  decisive  of  the  effectiveness 
of  a  blockade,  but  the  case  made  on  this  record  does  not  rest 
on  that  ground. 

We  are  of  opinion  that  if  a  single  modern  cruiser  blockading 
a  port  renders  it  in  fact  dangerous  for  other  craft  to  enter  the 
port,  that  is  sufficient,  since  thereby  the  blockade  is  made 
practically  effective. 

What  then  were  the  facts  as  to  the  effectiveness  of  the  block- 
ade in  the  case  before  us? 

In  the  proclamation  of  June  27,  1898,  occurs  this  paragraph: 
"The  United  States  of  America  has  instituted  and  will  main- 
tain an  effective  blockade  of  all  the  ports  on  the  south  coast  of 
Cuba,  from  Cape  Frances  to  Cape  Cruz,  inclusive,  and  also 
of  the  port  of  San  Juan,  in  the  island  of  Porto  Rico."  Proclama- 
tion No.  11,  30  Stat.  34.  The  blockade  thus  announced  was 
not  of  the  coast  of  Porto  Rico,  but  of  the  port  of  San  Juan, 
a  town  of  less  than  25,000  inhabitants,  on  the  northern  coast  of 
Porto  Rico,  with  a  single  entrance.  From  June  27  to  July  14, 
1898,  the  Yosemite,  a  merchant  ship  converted  into  an  aux- 
iliary cruiser,  blockaded  the  port.  Her  maximum  speed  was 
fifteen  and  one-half  knots;  and  her  armament  ten  5-mch  rapid 
firing  guns,  six  6-pounders,  two  1-pounders,  with  greatest  range 
of  three  and  one-half  miles. 

While  the  Yosemite  was  blockading  the  port  she  ran  the 
armed  transport  Antonio  Lopez  aground  six  miles  from  San  Juan; 
gave  a  number  of  neutral  vessels  official  notice  of  the  blockade; 
warned  off  many  from  the  port;  and  on  the  5th  of  July,  1898, 
wrote  into  the  log  of  the  Olinde  Rodrigues,  off  San  Juan,  the 
official  warning  of  the  blockade  of  San  Juan.  On  July  14  and 
thereafter  the  port  was  blockaded  by  the  armoured  cruiser 
New  Orleans,  whose  maximum  speed  was  twenty-two  knots, 
and  her  armament  six  6-inch  breech-loading  rifles,  four  4.7-inch 
breech-loading  rifles,  ten  6-pounders,  four  1.5-inch  guns,  corres- 
ponding to  3-pounders;  four  3-pounders  in  the  tops;  four  37- 
millimetre  automatic  guns,  corresponding  to  1-pounders.  The 
range  of  her  guns  was  five  and  one-half  sea  miles  or  six  and  a 
quarter  statute  miles.     If  stationary  she  could  command  a 


324  DOCUMENTS  ON  INTERNATIONAL  LAW 

circle  of  thirteen  miles  in  diameter;  if  moving,  at  maximum 
speed,  she  could  cover  in  five  minutes  any  point  on  a  circle  of 
seventeen  miles  diameter;  and  in  ten  minutes  any  point  on  a 
circle  of  nineteen  miles  diameter;  her  electric  searchlights 
could  sweep  the  sea  by  night  for  ten  miles  distance ;  her  motive 
power  made  her  independent  of  winds  and  currents;  in  these 
respects  and  in  her  armament  and  increased  range  of  guns  she 
so  far  surpassed  in  effectiveness  the  old-time  war-ships  that  it 
would  be  inadmissible  to  hold  that  even  if  a  century  ago  more 
than  one  ship  was  believed  to  be  required  for  an  effective 
blockade  therefore  this  cruiser  was  not  sufficient  to  blockade 
this  port. 

Assuming  that  the  Olindo  Rodrigues  attempted  to  enter  San 
Juan,  July  17,  there  can  be  no  question  that  it  was  dangerous 
for  her  to  do  so,  as  the  result  itself  demonstrated.  She  had  had 
actual  warning  twelve  days  before;  no  reason  existed  for  the 
supposition  that  the  blockade  had  been  pretermitted  or  relaxed; 
her  commander  had  no  right  to  experiment  as  to  the  practical 
effectiveness  of  the  blockade,  and,  if  he  did  so,  he  took  the 
risk;  he  was  believed  to  be  making  the  attempt,  and  was  imme- 
diately captured.  In  these  circumstances  the  vessel  cannot  be 
permitted  to  plead  that  the  blockade  was  not  legally  effective 

But  we  are  considering  the  blo(;kade  of  the  port  of  San  Juan 
and  not  of  the  coast,  and  while  additional  vessels  to  cruise 
about  the  island  might  be  desirable  in  order  that  the  blockade 
should  be  positively  effective,  we  think  it  a  sufficient  compliance 
with  the  obligations  of  international  law  if  the  blockade  made 
egress  or  ingress  dangerous  in  fact,  and  that  the  suggestions  of  a 
zealous  American  naval  commander,  in  anticipation  of  a  conflict 
of  armed  forces  before  San  Juan,  that  the  blockade  should  be 
brought  to  the  highest  efficiency  in  a  military  as  well  as  a  com- 
mercial aspect,  cannot  be  allowed  to  have  the  effect  of  showing 
that  the  blockade  which  did  exist  was,  as  to  this  vessel,  ineffec- 
tive in  point  of  law. 

Such  being  the  situation,  and  the  evidence  of  the  ship's 
officers  being  explicit  that  the  vessel  was  on  her  way  to  St. 
Thomas  and  had  no  intention  of  running  into  San  Juan,  the  de- 


THE  LAW  OF  NEUTRALITY  325 

cree  in  her  favour  must  be  affirmed  on  the  merits,  unless  the 
record  elsewhere  furnishes  evidence  sufficient  to  overcome  the 
conclusion  reasonably  deducible  from  the  facts  above  stated„ 

Counsel  for  the  government  insist  that  the  intention  of  the 
Olinde  to  run  the  blockade  is  necessarily  to  be  inferred  from 
the  possession  of  these  bills  of  health  and  their  alleged  conceal- 
ment and  destruction.  Doubtless  the  spoliation  of  papers, 
and,  though  to  a  less  degree,  their  concealment,  is  theoretically 
a  serious  offence,  and  authorizes  the  presumption  of  an  inten- 
tion to  suppress  incriminating  evidence,  though  this  is  not  an 
irrebuttable  presumption. 

In  The  Pizarro,  2  Wheat.  227,  241,  the  rule  is  thus  stated  by 
Mr.  Justice  Story:  "Concealment,  or  even  spoliation  of  papers 
is  not  of  itself  a  sufficient  ground  for  condemnation  in  a  prize- 
court.  It  is,  undoubtedly,  a  very  awakening  circumstance, 
calculated  to  excite  the  vigilance,  and  to  justify  the  suspicions 
of  the  court.  But  it  is  a  circumstance  open  to  explanation, 
for  it  may  have  arisen  from  accident,  necessity,  or  superior 
force;  and  if  the  party  in  the  first  instance  fairly  and  frankly 
explains  it  to  the  satisfaction  of  the  court,  it  deprives  him  of 
no  right  to  which  he  is  otherwise  entitled.  If,  on  the  other 
hand,  the  spoliation  be  unexplained,  or  the  explanation  appear 
weak  or  futile;  if  the  cause  labour  under  heavy  suspicions,  or 
there  be  a  vehement  presumption  of  bad  faith,  or  gross  prevari- 
cation, it  is  made  the  ground  of  a  denial  of  further  proof,  and 
condemnation  ensues  from  defects  in  the  evidence  which  the 
party  is  not  permitted  to  supply." 

The  evidence  of  evil  intent  must  be  clear  and  convincing 
before  a  merchant  ship  belonging  to  citizens  of  a  friendly 
nation  will  be  condemned.  And  on  a  careful  review  of  the 
entire  evidence,  we  think  we  are  not  compelled  to  proceed  to 
that  extremity. 

But,  on  the  other  hand,  we  are  bound  to  say  that,  taking  all 
the  circumstances  together  and  giving  due  weight  to  the  evi- 
dence on  behalf  of  the  captors,  probable  cause  for  making  the  cap- 
ture undoubtedly  existed ;  and  the  case  disclosed  does  not  com- 
mend this  vessel  to  the  favourable  consideration  of  the  court. 


32G  DOCUMENTS  ON  INTERNATIONAL  LAW 

Probable  cause  exists  where  there  are  circumstances  sufficient 
to  warrant  suspicion  though  it  may  turn  out  that  the  facts  are 
not  sufficient  to  warrant  condemnation.  And  whether  they 
are  or  not  cannot  be  determined  unless  the  customary  proceed- 
ings of  prize  are  instituted  and  enforced.  The  Adeline,  4 
Cranch,  244,  285;  The  Thomyson,  3  Wall.  155.  Even  if  not 
found  sufficient  to  condemn,  restitution  will  not  necessarily 
be  made  absolutely,  but  may  be  decreed  conditionally  as  each 
case  requires,  and  an  order  of  restitution  does  not  prove  lack 
of  probable  cause.  The  Adeline,  supra;  Jennings  v.  Carson, 
4  Cranch,  2,  28,  29. 

In  the  statement  of  Sir  William  Scott  and  Sir  John  Nicholl, 
transmitted  to  Chief  Justice  Jay,  then  Minister  to  England,  by 
Sir  William  Scott,  Sept.  10,  1794,  "The  general  principles  of 
proceeding  in  prize  causes,  in  British  Courts  of  Admiralty, 
and  of  the  measures  proper  to  be  taken  when  a  ship  and  cargo 
are  brought  in  as  prize  within  their  jurisdictions,"  are  set  forth 
as  laid  down  in  an  extract  from  a  report  made  to  the  King  in 
1753  "by  Sir  George  Lee,  then  judge  of  the  Prerogative  Court, 
Dr.  Paul,  his  Majesty's  advocate  general,  Sir  Dudley  Rider, 
his  Majesty's  attorney-general,  and  Mr.  Murray  (afterwards 
Lord  Mansfield),  his  Majesty's  solicitor-general";  and  many 
instances  are  given  where  in  the  enforcement  of  the  rules  "the 
law  of  nations  allows,  according  to  the  different  degrees  of 
misbehaviour,  or  suspicion,  arising  from  the  fault  of  the  ship 
taken,  and  other  circumstances  of  the  case,  costs  to  be  paid, 
or  not  to  be  received  by  the  claimant,  in  case  of  acquittal  and 
restitution."  Wheaton  on  Captures,  Appendix,  309,  311,  312; 
Pratt's  Story's  Notes,  p.  35. 

In  The  Appollon,  9  Wheat.  362,  372,  Mr.  Justice  Story  said: 
"No  principle  is  better  settled  in  the  law  of  prize  than  the 
rule  that  probable  cause  will  not  merely  excuse,  but  even,  in 
some  cases,  justify  a  capture.  If  there  be  probable  cause,  the 
captors  are  entitled,  as  of  right,  to  an  exemption  from  damages; 
and  if  the  case  be  of  strong  and  vehement  suspicion,  or  requires 
further  proof  to  entitle  the  claimant  to  restitution,  the  law  of 
prize  proceeds  yet  farther,  and  gives  the  captors  their  costs  and 
expenses  in  proceeding  to  adjudication." 


THE  LAW  OF  NEUTRALITY  327 

Section  4639  of  the  Revised  Statutes  contemplates  that, 
under  circumstances,  all  costs  and  expenses  shall  remain  charged 
on  the  captured  vessel  though  she  be  restored,  and  this  court 
has  repeatedly  held  that  damages  and  costs  will  be  denied  where 
there  was  probable  cause  for  seizure,  and  that  sometimes  costs 
will  be  awarded  to  the  captors.  The  Venus,  5  Wheat.  127; 
The  Thompson,  3  Wall.  155;  The  Springbok,  5  Wall.  1;  The 
Dashing  Wave,  5  Wall.  170;  The  Sir  William  Peel,  5  Wall.  517; 
The  Peterhoff,  5  Wall.  28,  61,  62. 

In  The  Dashing  Wave,  Chief  Justice  Chase  said:  "We  think 
it  was  the  plain  duty  of  a  neutral  claiming  to  be  engaged  in 
trade  with  Matamoras,  under  circumstances  which  warranted 
close  observation  by  the  blockading  squadron,  to  keep  his 
vessel,  while  discharging  or  receiving  cargo,  so  clearly  on  the 
neutral  side  of  the  boundary  line  as  to  repel,  so  far  as  position 
could  repel,  all  imputation  of  intent  to  break  the  blockade.  He 
had  no  right  to  take,  voluntarily,  a  position  in  the  immediate 
presence  of  the  blockading  fleet,  from  which  merchandise  might 
be  so  easily  introduced  into  the  blockaded  region.  We  do  not 
say  that  neglect  of  duty,  in  this  respect,  on  the  part  of  the  brig, 
especially  in  the  absence  of  positive  evidence  that  the  neglect 
was  wilful,  calls  for  condemnation;  but  we  cannot  doubt  that 
under  the  circumstances  described,  capturing  and  sending  in 
for  adjudication  was  fully  warranted." 

In  The  Springbok,  the  ship  was  restored,  but  costs  and  dam- 
ages were  not  allowed  because  of  the  misconduct  of  the  master. 

In  The  Peterhoff,  payment  of  costs  and  expenses  by  the  ship 
was  decreed  as  a  condition  of  restitution.  The  Peterhoff  was 
captured  by  the  United  States  vessel  of  war  Vanderbilt  on  sus- 
picion of  intent  to  run  the  blockade  and  of  having  contraband 
on  board.  Her  captain  refused  to  take  his  papers  to  the  Vander- 
bilt and,  in  addition,  papers  were  destroyed  and  a  package  was 
throwTi  overboard.  The  Peterhoff  was  searched,  and  it  is  stated 
in  the  opinion:  ''The  search  led  to  the  belief  on  the  part  of  the 
officers  of  the  Vanderbilt  that  there  was  contraband  on  board, 
destined  to  the  enemy.  This  belief,  it  is  now  apparent,  was 
warranted.     It  was  therefore  the  duty  of  the  captors  to  bring 


328  DOCUMENTS  ON  INTERNATIONAL  LAW 

The  Peterhoff  in  for  adjudication,  and  clearly  they  are  not  liable 
for  the  cost  and  expenses  of  doing  so."  The  court  then  com- 
mented on  the  destruction  of  papers,  and  the  throwing  over- 
board of  the  package,  in  regard  to  which  it  was  unable  to  credit 
the  representations  of  the  captain,  but  in  view  of  the  other 
facts  in  the  case,  did  not  extend  the  effect  of  the  captain's  con- 
duct and  the  incriminating  circumstances  to  condemnation. 

The  case  before  us  falls  plainly  within  these  rulings.  This 
vessel  had  gone  into  San  Juan  on  July  4th,  although  the  captain 
had  heard  of  the  blockade  at  St.  Thomas,  but  he  says  he  had  not 
been  officially  notified  of  it;  he  telegraphed  to  the  consul  at 
San  Juan  to  know,  and  was  answered  that  they  had  received 
no  official  notice  from  Washington  that  the  port  was  blockaded ; 
he  also  heard  while  in  San  Juan  that  "it  would  be  blockaded 
some  future  time,  but  that  was  not  officially."  The  vessel  was 
boarded  and  warned  by  the  Yosemite  on  July  5th,  and  the  warn- 
ing entered  on  her  log.  This  imposed  upon  her  the  duty  to 
avoid  approaching  San  Juan,  on  her  return,  so  nearly  as  to  give 
just  cause  of  suspicion,  yet  she  so  shaped  her  course  as  inevi- 
tably to  invite  it. 

When  the  New  Orleans  succeeded  the  Yosemite,  her  com- 
mander was  informed  of  the  facts  by  his  predecessor,  and  knew 
that  whatever  the  right  of  the  Olinde  Rodrigues  to  be  in  those 
waters,  she  could  not  lawfully  place  herself  so  near  the  inter- 
dicted port  as  to  be  able  to  break  the  blockade  with  impunity. 
But  when  he  sighted  her  the  ship  was  on  a  course  to  all  appear- 
ance directly  into  that  port,  and  steadily  pursuing  it.  And 
when  he  signalled,  the  Olinde  Rodrigues  apparently  did  not  obey, 
but  seemingly  persisted  on  her  course,  and  that  course  would  in 
a  few  moments  have  placed  her  within  the  range  of  the  guns  of 
Morro  and  of  the  shore  batteries.  In  fact,  when  the  shot  was 
fired  she  was  within  the  range  of  the  Morro's  guns.  The  evi- 
dence is  overwhelming  that  she  did  not  change  her  course  until 
after  the  shot  was  fired,  even  though  she  may  have  stopped  as 
soon  as  she  saw  the  signal.  The  turning  point  into  the  Culebra 
or  Virgin  Passage  was  perhaps  forty  miles  to  the  eastward,  and 
while  she  could  have  passed  the  port  of  San  Juan  on  the  course 


THE  LAW  OF  NEUTRALITY  329 

she  was  on,  it  would  have  been  within  a  very  short  distance. 
The  disregard  of  her  duty  to  shun  the  port  and  not  approach 
it  was  so  flagrant  that  the  intention  to  break  the  blockade 
was  to  be  presumed,  though  we  do  not  hold  that  that  was  a 
presumption  de  jure. 

The  ship's  log  was  not  produced  until  three  hours  after  she 
was  boarded,  and  it  now  appears,  that  the  papers  furnished  the 
boarding  officers,  "said  to  be  all  the  ship's  papers,"  did  not 
include  two  Spanish  bills  of  health  in  which  San  Juan  was 
entered  as  the  vessel's  destination.  These  were  destroyed  after 
the  ship  reached  Charleston,  and,  were,  therefore,  in  the  ship's 
possession  when  the  other  papers  were  delivered.  Had  they 
been  shown,  as  they  should  have  been,  can  it  be  denied  that  they 
would  have  furnished  strong  corroboration  of  criminal  intent? 
Or  that  their  destruction  tended  to  make  a  case  of  strong  and 
vehement  suspicion? 

The  entire  record  considered,  we  are  of  opinion  that  resti- 
tution of  the  Olinde  Rodrigues  should  be  awarded,  without  dam- 
ages, and  that  payment  of  the  costs  and  expenses  incident  to 
her  custody  and  preservation,  and  of  all  costs  and  expenses  in 
the  cause  except  the  fees  of  counsel,  should  be  imposed  upon 
the  ship. 

The  decree  of  the  District  Court  will  be  so  modified,  and 
as  modified  affirmed. 

Mr.  Justice  McKenna  dissented  on  the  ground  that  the 
evidence  justified  condemnation.  —  (Scott,  Cases  on  Interna- 
tional Law,  pp.  835-844.) 

10.   Judgment  of  Sir  Willieim  Scott  in  the  Case  of  the 
Jonge  Mar^garetha 

The  Doctrine  of  Conditional  Contraband  and  its 
Application  to  Provisions 

Sir  W.  Scott.  There  is  little  reason  to  doubt  the  property 
in  this  case,  and  therefore  passing  over  the  observations  which 
have  been  made  on  that  part  of  the  subject,  I  shall  confine 
myself  to  the  single  question,  Is  this  a  legal  transaction  in  a 


330  DOCUMENTS  ON  INTERNATIONAL  LAW 

neutral,  being  the  transaction  of  a  Papenberg  ship  carrying 
Dutch  cheeses  from  Amsterdam  to  Brest  or  Morlaix  (it  is  said) 
but  certainly  to  Brest;  or  as  it  may  be  otherwise  described,  the 
transaction  of  a  neutral  carrying  a  cargo  of  provisions,  not  the 
product  and  manufacture  of  his  own  country,  but  of  the  enemy's 
ally  in  the  war  —  of  provisions  which  are  a  capital  ship's  store 
—  and  to  the  great  port  of  naval  equipment  of  the  enemy? 

If  I  adverted  to  the  state  of  Brest  at  this  time,  it  might  be 
no  unfair  addition  to  the  terms  of  the  description,  if  I  noticed, 
what  was  notorious  to  all  Europe  at  this  time,  that  there  was  in 
that  port  a  considerable  French  fleet  in  a  state  of  preparation 
for  sallying  forth  on  a  hostile  expedition;  its  motions  at  that 
time  watched  with  great  anxiety  by  a  British  fleet  which  lay  off 
the  harbour  for  the  purpose  of  defeating  its  designs.  Is  the 
carriage  of  such  a  supply,  to  such  a  place,  and  on  such  an 
occasion  a  traffic  so  purely  neutral,  as  to  subject  the  neutral 
trader  to  no  inconvenience? 

If  it  could  be  laid  down  as  a  general  position,  in  the  manner 
in  which  it  has  been  argued,  that  cheese,  being  a  provision,  is 
universally  contraband,  the  question  would  be  readily  answered; 
but  the  court  lays  dowTi  no  such  position.  The  catalogue  of 
contraband  has  varied  very  much,  and  sometimes  in  such  a 
manner  as  to  make  it  very  difficult  to  assign  the  reason  of  the 
variations;  owing  to  particular  circumstances,  the  history  of 
which  has  not  accompanied  the  history  of  the  decisions.  In 
1673,  when  many  unwarrantable  rules  were  laid  down  by  public 
authority  respecting  contraband,  it  was  expressly  asserted  by 
Sir  R,  Wiseman,  the  then  King's  Advocate,  upon  a  formal 
reference  made  to  him,  that  by  the  English  Admiralty,  corn, 
wine,  and  oil,  were  liable  to  be  deemed  contraband.  "I  do 
agree,"  says  he,  reprobating  the  regulations  that  had  been 
published,  and  observing  that  rules  are  not  to  be  so  hardly 
laid  down  as  to  press  upon  neutrals,  "that  corn,  wine,  and  oil, 
will  be  deemed  contraband." 

These  articles  of  provisions  then  were  at  that  time  confisca- 
ble, according  to  the  judgment  of  a  person  of  great  knowledge 
and  experience  in  the  practice  of  this  court.     In  much  later 


THE  LAW  OF  NEUTRALITY  331 

times  many  other  sorts  of  provisions  have  been  condemned  as 
contraband.  In  1747,  in  The  Jonge  Andreas,  butter,  going  to 
Rochelle,  was  condemned;  how  it  happened  that  cheese  at  the 
same  time  was  more  favourably  considered  according  to  the 
case  cited  by  Dr.  Swabey,  I  don't  exactly  know;  the  distinction 
appears  nice;  in  all  probability  the  cheeses  were  not  of  the 
species  which  is  intended  for  ship's  use.  Salted  cod  and  salmon 
were  condemned  in  The  Jonge  Frederick,  going  to  Rochelle,  in 
the  same  year.  In  1748,  in  The  Joannes,  rice  and  salted  her- 
rings were  condemned  as  contraband.  These  instances  show 
that  articles  of  human  food  have  been  so  considered,  at  least 
where  it  was  probable  that  they  were  intended  for  naval  or 
military  use. 

I  am  aware  of  the  favourable  positions  laid  down  upon  this 
matter  by  Wolfius  and  Vattel,  and  other  Avriters  of  the  con- 
tinent, although  Vattel  expressly  admits  that  provisions  may, 
under  circumstances,  be  treated  as  contraband.  And  I  take 
the  modern  established  rule  to  be  this,  that  generally  they  are 
not  contraband,  but  may  become  so  under  circumstances  aris- 
ing out  of  the  particular  situation  of  the  war,  or  the  condition 
of  the  parties  engaged  in  it.  The  court  must  therefore  look  to 
the  circumstances  under  which  the  supply  was  sent. 

Among  the  circumstances  which  tend  to  preserve  provisions 
from  being  liable  to  be  treated  as  contraband,  one  is,  that  they 
are  of  the  growth  of  the  country  which  exports  them.  In  the 
present  case,  they  are  the  product  of  another  country,  and  that 
a  hostile  country;  and  the  claimant  has  not  only  gone  out  of 
his  way  for  the  supply  of  the  enemy,  but  he  has  assisted  the 
enemy's  ally  in  the  war  by  taking  off  his  surplus  commodities. 

Another  circumstance  to  which  some  indulgence,  by  the  prac- 
tice of  nations  is  showTi,  is,  when  the  articles  are  in  their  native 
and  unmanufactured  state.  Thus  iron  is  treated  with  indul- 
gence, though  anchors  and  other  instruments  fabricated  out  of 
it  are  directly  contraband.  Hemp  is  more  favourably  con- 
sidered than  cordage;  and  wheat  is  not  considered  as  so 
noxious  a  commodity  as  any  of  the  final  preparations  of  it  for 
human  use.     In  the  present  case,  the  article  falls  under  this 


332  DOCUMENTS  ON  INTERNATIONAL  LAW 

unfavourable  consideration,  being  a  manufacture  prepared  for 
immediate  use. 

But  the  most  important  distinction  is,  whether  the  articles 
were  intended  for  the  ordinary  use  of  life,  or  even  for  mercantile 
ships'  use;  or  whether  they  were  going  with  a  higlily  probable 
destination  to  military  use?  Of  the  matter  of  fact,  on  which 
the  distinction  is  to  be  applied,  the  nature  and  quality  of  the 
port  to  which  the  articles  were  going,  is  not  an  irrational  test; 
if  the  port  is  a  general  commercial  port,  it  shall  be  understood 
that  the  articles  were  going  for  civil  use,  although  occasionally 
a  frigate  or  other  ships  of  war,  may  be  constructed  in  that  port. 
Contra,  if  the  great  predominant  character  of  a  port  be  that  of 
a  port  of  naval  military  equipment,  it  shall  be  intended  that 
the  articles  were  going  for  military  use,  although  merchant 
ships  resort  to  the  same  place,  and  although  it  is  possible  that 
the  articles  might  have  been  applied  to  civil  consumption;  for 
it  being  impossible  to  ascertain  the  final  use  of  an  article  andpi- 
tis  usus,  it  is  not  an  injurious  rule  which  deduces  both  ways 
the  final  use  from  the  immediate  destination;  and  the  presump- 
tion of  a  hostile  use,  founded  on  its  destination  to  a  military 
port,  is  very  much  inflamed,  if  at  the  time  when  the  articles  were 
going,  a  considerable  armament  was  notoriously  preparing,  to 
which  a  supply  of  those  articles  would  be  eminently  useful. 

In  the  case  of  The  Endraught,  cited  for  the  claimant,  the 
destination  was  to  Bordeaux;  and  though  smaller  vessels  of 
war  may  be  occasionally  built  and  fitted  out  there,  it  is  by  no 
means  a  port  of  naval  military  equipment  in  its  principal 
occupation,  in  the  same  manner  as  Brest  is  universally  known 
to  be. 

The  court,  however,  was  unwilling,  in  the  present  case,  to 
conclude  the  claimant  on  the  mere  point  of  destination,  it  being 
alleged  that  the  cheeses  were  not  fit  for  naval  use,  but  were 
merely  luxuries  for  the  use  of  domestic  tables.  It  therefore 
permitted  both  parties  to  exhibit  affidavits  as  to  their  nature 
and  quality.  The  claimant  has  exhibited  none;  but  here  are 
authentic  certificates  from  persons  of  integrity  and  knowl- 
edge, that  they  are  exactly  such  cheeses  as  are  used  in  British. 


THE  LAW  OF  NEUTRALITY  333 

ships,  where  foreign  cheeses  are  used  at  all;   and  that  they  are 
exclusively  used  in  French  ships  of  war. 

Attending  to  all  these  circumstances,  I  think  myself  war- 
ranted to  pronounce  these  cheeses  to  be  contraband,  and  con- 
demn them  as  such.  As,  however,  the  party  has  acted  without 
dissimulation  in  the  case,  and  may  have  been  misled  by  an 
inattention  to  circumstances,  to  which  in  strictness  he  ought  to 
have  adverted,  as  well  as  by  something  like  an  irregular  indul- 
gence on  which  he  has  relied;  I  shall  content  myself  with  pro- 
nouncing the  cargo  to  be  contraband,  without  enforcing  the 
usual  penalty  of  the  confiscation  of  the  ship  belonging  to  the 
same  proprietor.  —  (1,  C.  Rob.,  189.) 

11.   The  Declaration  of  London,  1909 
Chapter  I  —  Blockade  in  Time  of  War 

Article  1 

A  blockade  must  not  extend  beyond  the  ports  and  coasts 
belonging  to  or  occupied  by  the  enemy. 

Article  2 

In  accordance  with  the  Declaration  of  Paris  of  1856,  a  block- 
ade, in  order  to  be  binding,  must  be  effective  —  that  is  to  say, 
it  must  be  maintained  by  a  force  sufficient  really  to  prevent 
access  to  the  enemy  coastline. 

Article  3 
The  question  whether  a  blockade  is  effective  is  a  question 
of  fact. 

Article  4 

A  blockade  is  not  regarded  as  raised  if  the  blockading  force 
is  temporarily  withdrawn  on  account  of  stress  of  weather. 

Article  6 
A  blockade  must  be  applied  impartially  to  the  ships  of  all 
nations. 


334  DOCUMENTS  ON   INTERNATIONAL  LAW 

Article  6 
The  commander  of  a  blockading  force  may  give  permission 
to   a  war-ship   to  enter,  and  subsequently  to  leave,  a  block- 
aded port. 

Article  7 

In  circumstances  of  distress,  acknowledged  by  an  officer  of 
the  blockading  force,  a  neutral  vessel  may  enter  a  place  under 
blockade  and  subsequently  leave  it,  provided  that  she  has 
neither  discharged  nor  shipped  any  cargo  there. 

Article  8 
A  blockade,  in  order  to  be  binding,  must  be  declared  in  ac- 
cordance with  Article  9,  and  notified  in  accordance  with  Articles 
11  and  16. 

Article  9 
A  declaration  of  blockade  is  made  either  by  the  blockading 
Power  or  by  the  naval  authorities  acting  in  its  name. 
It  specifies  — 

(1)  The  date  when  the  blockade  begins; 

(2)  The  geographical  limits  of  the  coastline  under  blockade; 

(3)  The  period  within  which  neutral  vessels  may  come  out. 

Article  10 
If  the  operations  of  the  blockading  Power,  or  of  the  naval 
authorities  acting  in  its  name,  do  not  tally  with  the  particulars, 
which,  in  accordance  with  Article  9,  (1)  and  (2),  must  be  in- 
serted in  the  declaration  of  blockade,  the  declaration  is  void, 
and  a  new  declaration  is  necessary  in  order  to  make  the  block- 
ade operative. 

Article  11 

A  declaration  of  blockade  is  notified  — 

(1)  To  neutral  Powers,  by  the  blockading  Power  by  means 
of  a  communication  addressed  to  the  Governments  direct,  or 
to  their  representatives  accredited  to  it; 

(2)  To  the  local  authorities,  by  the  officer  commanding  the 
blockading  force.     The  local  authorities  will,  in  turn,  inform 


THE  LAW  OF  NEUTRALITY  335 

the  foreign  consular  officers  at  the  port  or  on  the  coasthne  under 
blockade  as  soon  as  possible. 

Article  12 

The  rules  as  to  declaration  and  notification  of  blockade  apply 
to  cases  where  the  limits  of  a  blockade  are  extended,  or  where 
a  blockade  is  re-established  after  having  been  raised. 

Article  13 

The  voluntary  raising  of  a  blockade,  as  also  any  restriction 
in  the  limits  of  a  blockade,  must  be  notified  in  the  manner  pre- 
scribed by  Article  11. 

Article  14 

The  liability  of  a  neutral  vessel  to  capture  for  breach  of 
blockade  is  contingent  on  her  knowledge,  actual  or  presump- 
tive of  the  blockade. 

Article  15 

Failing  proof  to  the  contrary,  knowledge  of  the  blockade  is 
presumed  if  the  vessel  left  a  neutral  port  subsequently  to  the 
notification  of  the  blockade  to  the  Power  to  which  such 
port  belongs,  provided  that  such  notification  was  made  in  suf- 
ficient time. 

Article  16 

If  a  vessel  approaching  a  blockaded  port  has  no  knowledge, 
actual  or  presumptive,  of  the  blockade,  the  notification  must  be 
made  to  the  vessel  itself  by  an  officer  of  one  of  the  ships  of 
the  blockading  force.  This  notification  should  be  entered  in 
the  vessel's  logbook,  and  must  state  the  day  and  hour,  and  the 
geographical  position  of  the  vessel  at  the  time. 

If  through  the  negligence  of  the  officer  commanding  the 
blockading  force  no  declaration  of  blockade  has  been  notified 
to  the  local  authorities,  or,  if  in  the  declaration,  as  notified,  no 
period  has  been  mentioned  within  which  neutral  vessels  may 
come  out,  a  neutral  vessel  coming  out  of  the  blockaded  port  must 
be  allowed  to  pass  free. 


33G  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  17 
Neutral  vessels  may  not  be  captured  for  breach  of  blockade 
except  within  the  area  of  operations  of  the  war-ships  detailed 
to  render  the  blockade  effective. 

Article  18 
The  blockading  forces  must  not  bar  access  to  neutral  ports 
or  coasts. 

Article  19 
Whatever  may  be  the  ulterior  destination  of  a  vessel  or  of 
her  cargo,  she  cannot  be  captured  for  breach  of  blockade,  if, 
at  the  moment,  she  is  on  her  way  to  a  non-blockaded  port. 

Article  20 

A  vessel  which  has  broken  blockade  outwards,  or  which  has 
attempted  to  break  blockade  inwards,  is  liable  to  capture  so 
long  as  she  is  pursued  by  a  ship  of  the  blockading  force.  If  the 
pursuit  is  abandoned,  or  if  the  blockade  is  raised,  her  capture 
can  no  longer  be  effected. 

Article  21 

A  vessel  found  guilty  of  breach  of  blockade  is  condemned. 
The  cargo  is  also  condemned,  unless  it  is  proved  that  at  the 
time  of  the  shipment  of  the  goods  the  shipper  neither  knew  nor 
could  have  known  of  the  intention  to  break  the  blockade. 

Chapter  II  —  Contraband  of  War 
Article  22 
The  following  articles  may,  without  notice,  be  treated  as 
contraband  of  war,  under  the  name  of  absolute  contraband :  — 

(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes, 
and  their  distinctive  component  parts. 

(2)  Projectiles,  charges,  and  cartridges  of  all  kinds,  and 
their  distinctive  component  parts. 

(3)  Powder  and  explosives  especially  prepared  for  use  in 
war. 


THE  LAW  OF  NEUTRALITY  337 

(4)  Gun-mountings,  limber  boxes,  limbers,  military  waggons, 
field  forges,  and  their  distinctive  component  parts. 

(5)  Clothing  and  equipment  of  a  distinctively  military 
character. 

(6)  All  kinds  of  harness  of  a  distinctively  military  character. 

(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in 
war. 

(8)  Articles  of  camp  equipment,  and  their  distinctive  com- 
ponent parts. 

(9)  Armour  plates. 

(10)  War-ships,  including  boats,  and  their  distinctive  com- 
ponent parts  of  such  a  nature  that  they  can  only  be  used  on  a 
vessel  of  war. 

(11)  Implements  and  apparatus  designed  exclusively  for  the 
manufacture  of  munitions  of  war,  for  the  manufacture  or  repair 
of  arms,  or  war  material  for  use  on  land  or  sea. 

Article  23 

Articles  exclusively  used  for  war  may  be  added  to  the  list  of 
absolute  contraband  by  a  declaration,  which  must  be  notified. 

Such  notification  must  be  addressed  to  the  Governments  of 
other  Powers,  or  to  their  representatives  accredited  to  the  Power 
making  the  declaration.  A  notification  made  after  the  out- 
break of  hostilities  is  addressed  only  to  neutral  Powers. 

Article  24 

The  following  articles,  susceptible  of  use  in  war  as  well  as 
for  purposes  of  peace,  may,  without  notice,  be  treated  as  con- 
traband of  war,  under  the  name  of  conditional  contraband :  — 

(1)  Foodstuffs. 

(2)  Forage  and  grain,  suitable  for  feeding  animals. 

(3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes, 
suitable  for  use  in  war. 

(4)  Gold  and  silver  in  coin  or  bullion;  paper  money. 

(5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their 
component  parts. 


338  DOCUMENTS  ON  INTERNATIONAL  LAW 

(6)  Vessels,  craft,  and  boats  of  all  kinds;  floating  docks, 
parts  of  docks  and  their  component  parts. 

(7)  Railway  material,  both  fixed  and  rolling-stock,  and 
material  for  telegraphs,  wireless  telegraphs,  and  telephones. 

(8)  Balloons  and  flying  machines  and  their  distinctive  com- 
ponent parts,  together  with  accessories  and  articles  recognizable 
as  intended  for  use  in  connection  with  balloons  and  flying 
machines. 

(9)  Fuel;  lubricants. 

(10  Powder  and  explosives  not  specially  prepared  for  use  in 
war. 

(11)  Barbed  wire  and  implements  for  fixing  and  cutting  the 
same. 

(12)  Horseshoes  and  shoeing  materials. 

(13)  Harness  and  saddlery. 

(14)  Field  glasses,  telescopes,  chronometers,  and  all  kinds 
of  nautical  instruments. 

Article  25 

Articles  susceptible  of  use  in  war  as  well  as  for  purposes  of 
peace,  other  than  those  enumerated  in  Articles  22  and  24,  may 
be  added  to  the  list  of  conditional  contraband  by  a  declara- 
tion, which  must  be  notified  in  the  manner  provided  for  in  the 
second  paragraph  of  Article  23. 

Article  26 

If  a  Power  waives,  so  far  as  it  is  concerned,  the  right  to  treat 
as  contraband  of  war  an  article  comprised  in  any  of  the  classes 
enumerated  in  Articles  22  and  24,  such  intention  shall  be  an- 
nounced by  a  declaration,  which  must  be  notified  in  the  manner 
provided  for  in  the  second  paragraph  of  Article  23. 

Article  27 

Articles  which  are  not  susceptible  of  use  in  war  may  not  be 
declared  contraband  of  war. 


THE  LAW  OF  NEUTRALITY  339 

Article  28 
The  following  may  not  be  declared  contraband  of  war :  — 

(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw 
materials  of  the  textile  industries,  and  yarns  of  the  same. 

(2)  Oil  seeds  and  nuts;  copra. 

(3)  Rubber,  resins,  gums,  and  lacs;  hops. 

(4)  Raw  hides  and  horns,  bones,  and  ivory. 

(5)  Natural  and  artificial  manures,  including  nitrates  and 
phosphates  for  agricultural  purposes. 

(6)  Metallic  ores. 

(7)  Earths,  clays,  Hme,  chalk,  stone,  including  marble, 
bricks,  slates,  and  tiles. 

(8)  Chinaware  and  glass. 

(9)  Paper  and  paper-making  materials. 

(10)  Soap,  paint  and  colours,  including  articles  exclusively 
used  in  their  manufacture,  and  varnish. 

(11)  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake, 
ammonia,  sulphate  of  ammonia,  and  sulphate  of  copper. 

(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

(13)  Precious  and  semi-precious  stones,  pearls,  mother-of- 
pearl,  and  coral. 

(14)  Clocks  and  watches,  other  than  chronometers. 

(15)  Fashion  and  fancy  goods. 

(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

(17)  Articles  of  household  furniture  and  decoration;  office 
furniture  and  requisites. 

Article  29 
Likewise  the  following  may  not  be  treated  as  contraband  of 
war:  — 

(1)  Articles  serving  exclusively  to  aid  the  sick  and  wounded. 
They  can,  however,  in  case  of  urgent  miUtary  necessity  and  sub- 
ject to  the  payment  of  compensation,  be  requisitioned,  if  their 
destination  is  that  specified  in  Article  30. 

(2)  Articles  intended  for  the  use  of  the  vessel  in  which  they 
are  found,  as  well  as  those  intended  for  the  use  of  her  crew  and 
passengers  during  the  voyage. 


340  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  30 
Absolute  contraband  is  liable  to  capture  if  it  is  shown  to  be 
destined  to  territory  belonging  to  or  occupied  by  the  enemy,  or 
to  the  armed  forces  of  the  enemy.  It  is  immaterial  whether  the 
carriage  of  the  goods  is  direct  or  entails  transhipment  or  a 
subsequent  transport  by  land. 

Article  31 
Proof  of  the  destination  specified  in  Article  30  is  complete 
in  the  following  cases :  — 

(1)  When  the  goods  are  documented  for  discharge  in  an 
enemy  port,  or  for  delivery  to  the  armed  forces  of  the  enemy. 

(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when 
she  is  to  touch  at  an  enemy  port  or  meet  the  armed  forces  of 
the  enemy  before  reaching  the  neutral  port  for  which  the  goods 
in  question  are  documented. 

Article  32 

When  a  vessel  is  carrying  absolute  contraband,  her  papers 
are  conclusive  proof  as  to  the  voyage  on  which  she  is  engaged, 
unless  she  is  found  clearly  out  of  the  course  indicated  by  her 
papers  and  unable  to  give  adequate  reasons  to  justify  such 
deviation. 

Article  33 

Conditional  contraband  is  liable  to  capture  if  it  is  shown  to 
be  destined  for  the  use  of  the  armed  forces  or  of  a  government 
department  of  the  enemy  State,  unless  in  this  latter  case  the 
circumstances  show  that  the  goods  cannot  in  fact  be  used  for 
the  purposes  of  war  in  progress.  This  latter  exception  does  not 
apply  to  a  consignment  coming  under  Article  24  (4). 

Article  34 
The  destination  referred  to  in  Article  33  is  presumed  to  exist 
if  the  goods  are  consigned  to  enemy  authorities,  or  to  a  con- 
tractor established  in  the  enemy  country  who,  as  a  matter  of 
common  knowledge,  supplies  articles  of  this  kind  to  the  enemy. 


THE  LAW  OF  NEUTRALITY  341 

A  similar  presumption  arises  if  the  goods  are  consigned  to  a 
fortified  place  belonging  to  the  enemy,  or  other  place  serving  as 
a  base  for  the  armed  forces  of  the  enemy.  No  such  presxmap- 
tion,  however,  arises  in  the  case  of  a  merchant  vessel  bound  for 
one  of  these  places  if  it  is  sought  to  prove  that  she  herself  is 
contraband. 

In  cases  where  the  above  presumptions  do  not  arise,  the 
destination  is  presumed  to  be  innocent. 

The  presumptions  set  up  by  this  Article  may  be  rebutted. 

Article  35 

Conditional  contraband  is  not  liable  to  capture,  except  when 
found  on  board  a  vessel  bound  for  territory  belonging  to  or 
occupied  by  the  enemy,  or  for  the  armed  forces  of  the  enemy, 
and  when  it  is  not  to  be  discharged  in  an  intervening  neutral 
port. 

The  ship's  papers  are  conclusive  proof  both  as  to  the  voyage 
on  which  the  vessel  is  engaged  and  as  to  the  port  of  discharge  of 
the  goods,  unless  she  is  found  clearly  out  of  the  course  indicated 
by  her  papers,  and  unable  to  give  adequate  reasons  to  justify 
such  deviation. 

Article  36 

Notwithstanding  the  provisions  of  Article  35,  conditional 
contraband,  if  shown  to  have  the  destination  referred  to  in 
Article  33,  is  Hable  to  capture  in  cases  where  the  enemy  country 
has  no  seaboard. 

Article  37 

A  vessel  carrying  goods  liable  to  capture  as  absolute  or  con- 
ditional contraband  may  be  captured  on  the  high  seas  or  in  the 
territorial  waters  of  the  belligerents  throughout  the  whole  of 
her  voyage,  even  if  she  is  to  touch  at  a  port  of  call  before  reach- 
ing the  hostile  destination. 

Article  38 
A  vessel  may  not  be  captured  on  the  ground  that  she  has 
carried  contraband  on  a  previous  occasion  if  such  carriage  is  in 
point  of  fact  at  an  end. 


342  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  39 
Contraband  goods  are  liable  to  condemnation. 

Article  J^O 
A  vessel  carrying  contraband  may  be  condemned  if  the  con- 
traband, reckoned  either  by  value,  weight,  volume,  or  freight, 
forms  more  than  half  the  cargo. 

Article  4^ 
If  a  vessel  carrying  contraband  is  released,  she  may  be  con- 
demned to  pay  the  costs  and  expenses  incurred  by  the  captor 
in  respect  of  the  proceedings  in  the  national  prize  court  and  the 
custody  of  the  ship  and  cargo  during  the  proceedings. 

Article  42 
Goods  which  belong  to  the  owner  of  the  contraband  and  are 
on  board  the  same  vessel  are  liable  to  condemnation. 

Article  43 

If  a  vessel  is  encountered  at  sea  while  unaware  of  the  out- 
break of  hostilities  or  of  the  declaration  of  contraband  which 
applies  to  her  cargo,  the  contraband  cannot  be  condemned 
except  on  payment  of  compensation;  the  vessel  herself  and  the 
remainder  of  the  cargo  are  not  liable  to  condemnation  or  to  the 
costs  and  expenses  referred  to  in  Article  41.  The  same  rule 
applies  if  the  master,  after  becoming  aware  of  the  outbreak  of 
hostilities,  or  of  the  declaration  of  contraband,  has  had  no 
opportunity  of  discharging  the  contral^and. 

A  vessel  is  deemed  to  be  aware  of  the  existence  of  a  state  of 
war,  or  of  a  declaration  of  contraband,  if  she  left  a  neutral  port 
subsequently  to  the  notification  to  the  Power  to  which  such 
port  belongs  at  the  outbreak  of  hostilities  or  of  the  declaration 
of  contraband  respectively,  provided  that  such  notification  was 
made  in  sufficient  time.  A  vessel  is  also  deemed  to  be  aware 
of  the  existence  of  a  state  of  war  if  she  left  an  enemy  port  after 
the  outbreak  of  hostilities. 


THE  LAW  OF  NEUTRALITY  343 

Article  44 

A  vessel  which  has  been  stopped  on  the  ground  that  she  is 
carrying  contraband,  and  which  is  not  liable  to  condemnation 
on  account  of  the  proportion  of  contraband  on  board,  may, 
when  the  circumstances  permit,  be  allowed  to  continue  her 
voyage  if  the  master  is  willing  to  hand  over  the  contraband  to 
the  belligerent  warship. 

The  delivery  of  the  contraband  must  be  entered  by  the  captor 
on  the  logbook  of  the  vessel  stopped,  and  the  master  must  give 
the  captor  duly  certified  copies  of  all  relevant  papers. 

The  captor  is  at  liberty  to  destroy  the  contraband  that  has 
been  handed  over  to  him  under  these  conditions. 

Chapter  III  —  Unneutral  Service 
Article  45 
A  neutral  vessel  will  be  condemned  and  will,  in  a  general 
way,  receive  the  same  treatment  as  a  neutral  vessel  liable  to 
condemnation  for  carriage  of  contraband :  — 

(1)  If  she  is  on  a  voyage  specially  undertaken  with  a  view 
to  the  transport  of  individual  passengers  who  are  embodied  in 
the  armed  forces  of  the  enemy,  or  with  a  view  to  the  transmis- 
sion of  intelligence  in  the  interests  of  the  enemy. 

(2)  If,  to  the  knowledge  of  either  the  owner,  the  charterer, 
or  the  master,  she  is  transporting  a  military  detachment  of  the 
enemy,  or  one  or  more  persons  who,  in  the  course  of  the  voyage, 
directly  assist  the  operations  of  the  enemy. 

In  the  cases  specified  under  the  above  heads,  goods  belonging 
to  the  owner  of  the  vessel  are  likewise  liable  to  condemnation. 

The  provisions  of  the  present  Article  do  not  apply  if  the  vessel 
is  encountered  at  sea  while  unaware  of  the  outbreak  of  hostili- 
ties, or  if  the  master,  after  becoming  aware  of  the  outbreak  of 
hostilities,  has  had  no  opportunity  of  disembarking  the  pas- 
sengers. The  vessel  is  deemed  to  be  aware  of  the  existence  of 
a  state  of  war  if  she  left  an  enemy  port  subsequently  to  the 
outbreak  of  hostilities,  or  a  neutral  port  subsequently  to  the 
notification  of  the  outbreak  of  hostilities  to  the  power  to  which 


344  DOCUMENTS  ON  INTERNATIONAL  LAW 

such  port  belongs,  provided  that  such  notification  was  made 
in  sufficient  time. 

Article    46 
A  neutral  vessel  will  be  condemned  and,  in  a  general  way, 
receive  the  same  treatment  as  would  be  applicable  to  her  if  she 
were  an  enemy  merchant  vessel: 

(1)  If  she  takes  a  direct  part  in  the  hostilities; 

(2)  If  she  is  under  the  orders  or  control  of  an  agent  placed 
on  board  by  the  enemy  Government; 

(3)  If  she  is  in  the  exclusive  employment  of  the  enemy 
Government; 

(4)  If  she  is  exclusively  engaged  at  the  time  either  to  the 
transport  of  enemy  troops  or  to  the  transmission  of  intelligence 
in  the  interest  of  the  enemy. 

In  the  cases  covered  by  the  present  Article,  goods  belonging 
to  the  owner  of  the  vessel  are  likewise  liable  to  condemnation. 

Article  JP' 

Any  individual  embodied  in  the  armed  forces  of  the  enemy 
who  is  found  on  board  a  neutral  merchant  vessel,  may  be  made 
a  prisoner  of  war,  even  though  there  be  no  ground  for  the  cap- 
ture of  the  vessel. 

Chapter  IV  —  Destruction  of  Neutral  Prizes 

Article  4-5 

A  neutral  vessel  which  has  been  captured  may  not  be  de- 
stroyed by  the  captor;  she  must  be  taken  into  such  port  as  is 
proper  for  the  determination  there  of  all  questions  concerning 
the  validity  of  the  capture. 

Article  I^ 

As  an  exception,  a  neutral  vessel  which  has  been  captured 
by  a  belligerent  warship,  and  which  would  be  liable  to  con- 
demnation, may  be  destroyed  if  the  observance  of  Article  48 
would  involve  danger  to  the  safety  of  the  warship  or  to  the  suc- 
cess of  the  operations  in  which  she  is  engaged  at  the  time. 


THE  LAW  OF  NEUTRALITY  345 

Article  50 

Before  the  vessel  is  destroyed  all  persons  on  board  must  be 
placed  in  safety,  and  all  the  ship's  papers  and  other  documents 
which  the  parties  interested  consider  relevant  for  the  purpose 
of  deciding  on  the  validity  of  the  capture  must  be  taken  on 
board  the  warship. 

Article  51 

A  captor  who  has  destroyed  a  neutral  vessel  must,  prior  to 
any  decision  respecting  the  vahdity  of  the  prize,  estabhsh  that 
he  only  acted  in  the  face  of  an  exceptional  necessity  of  the 
nature  contemplated  in  Article  49.  If  he  fails  to  do  this,  he 
must  compensate  the  parties  interested  and  no  examination 
shall  be  made  of  the  question  whether  the  capture  was  vaUd 
or  not. 

Article  52 

If  the  capture  of  a  neutral  vessel  is  subsequently  held  to  be 
invalid,  though  the  act  of  destruction  has  been  held  to  have 
been  justifiable,  the  captor  must  pay  compensation  to  the 
parties  interested,  in  place  of  the  restitution  to  which  they 
would  have  been  entitled. 

Article  53 

If  neutral  goods  not  liable  to  condemnation  have  been  de- 
stroyed ^vith  the  vessel,  the  owner  of  such  goods  is  entitled  to 
compensation. 

Article  5 4 

The  captor  has  the  right  to  demand  the  handing  over,  or  to 
proceed  himself  to  the  destruction  of,  any  goods  liable  to  con- 
demnation found  on  board  a  vessel  not  herself  liable  to  con- 
demnation, provided  that  the  circumstances  are  such  as  would, 
under  Article  49,  justify  the  destruction  of  a  vessel  herself 
liable  to  condemnation.  The  captor  must  enter  the  goods 
surrendered  or  destroyed  in  the  logbook  of  the  vessel  stopped, 
and  must  obtain  duly  certified  copies  of  all  relevant  papers. 
When  the  goods  have  been  handed  over  or  destroyed,  and  the 


346  DOCUMENTS  ON   INTERNATIONAL  LAW 

formalities  duly  carried  out,  the  master  must  be  allowed  to 
continue  his  voyage. 

The  provisions  of  Articles  51  and  52  respecting  the  ob- 
ligations of  a  captor  who  has  destroyed  a  neutral  vessel  are 
applicable. 

Chapter  V  —  Transfer  to  a  Neutral  Flag 

Article  55 

The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
before  the  outbreak  of  hostilities,  is  valid,  unless  it  is  proved 
that  such  transfer  was  made  in  order  to  evade  the  consequences 
to  which  an  enemy  vessel,  as  such,  is  exposed.  There  is,  how- 
ever, a  presumption,  if  the  bill  of  sale  is  not  on  board  a  vessel 
which  has  lost  her  belligerent  nationality  less  than  sixty  days 
before  the  outbreak  of  hostilities,  that  the  transfer  is  void. 
This  presumption  may  be  rebutted. 

Where  the  transfer  was  effected  more  than  thirty  days  before 
the  outbreak  of  hostilities,  there  is  an  absolute  presumption 
that  it  is  valid  if  it  is  unconditional,  complete,  and  in  conformity 
with  the  laws  of  the  comitries  concerned,  and  if  its  effect  is 
such  that  neither  the  control  of,  nor  the  profits  arising  from  the 
employment  of,  the  vessel  remain  in  the  same  hands  as  before 
the  transfer.  If,  however,  the  vessel  lost  her  belligerent  nation- 
ality less  than  sixty  days  before  the  outbreak  of  hostilities  and 
if  the  bill  of  sale  is  not  on  board,  the  capture  of  the  vessel  gives 
no  right  to  damages. 

Article  56 

The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
after  the  outbreak  of  hostilities,  is  void  unless  it  is  proved  that 
such  transfer  was  not  made  in  order  to  evade  the  consequences 
to  which  an  enemy  vessel,  as  such,  is  exposed. 

There,  however,  is  an  absolute  presumption  that  a  transfer 
is  void :  — 

(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a 
blockaded  port. 


THE  LAW  OF  NEUTRALITY  347 

(2)  If  a  right  to  repurchase  or  recover  the  vessel  is  reserved 
to  the  vendor. 

(3)  If  the  requirements  of  the  municipal  law  governing  the 
right  to  fly  the  flag  under  which  the  vessel  is  sailing,  have  not 
been  fulfilled. 

Chapter  VI  —  Enemy  Character 
Article  57 
Subject  to  the  provisions  respecting  transfer  to  another  flag, 
the  neutral  or  enemy  character  of  a  vessel  is  determined  by  the 
flag  which  she  is  entitled  to  fly. 

The  case  where  a  neutral  vessel  is  engaged  in  a  trade  which 
is  closed  in  time  of  peace,  remains  outside  the  scope  of,  and  is 
in  no  wise  affected  by,  this  rule. 

Article  58 

The  neutral  or  enemy  character  of  goods  found  on  board  an 
enemy  vessel  is  determined  by  the  neutral  or  enemy  character 
of  the  owner. 

Article  59 

In  the  absence  of  proof  of  the  neutral  character  of  goods 
found  on  board  an  enemy  vessel,  they  are  presumed  to  be 
enemy  goods. 

Article  60 

Enemy  goods  on  board  an  enemy  vessel  retain  their  enemy 
character  until  they  reach  their  destination,  notwithstanding 
any  transfer  effected  after  the  outbreak  of  hostilities  while  the 
goods  are  being  forwarded. 

If,  however,  prior  to  the  capture,  a  former  neutral  owner 
exercises,  on  the  bankruptcy  of  an  existing  enemy  owner,  a 
recognized  legal  right  to  recover  the  goods,  they  regain  their 
neutral  character. 

Chapter  VII  —  Convoy 
Article  61 
Neutral  vessels  under  convoy  of  war-ships  of  their  own  nation- 
ality, are  exempt  from  search.     The  commander  of  a  convoy 


348  DOCUMENTS  ON  INTERNATIONAL  LAW 

gives,  in  writing,  at  the  request  of  the  commander  of  a  belliger- 
ent warship,  all  information  as  to  the  character  of  the  vessels 
and  their  cargoes  which  could  be  obtained  by  search. 

Article  62 
If  the  commander  of  the  belligerent  war-ship  has  reason  to 
suspect  that  the  confidence  of  the  commander  of  the  convoy 
has  been  abused,  he  communicates  his  suspicions  to  him.  In 
such  a  case  it  is  for  the  commander  of  the  convoy  alone  to  inves- 
tigate the  matter.  He  must  record  the  result  of  such  investiga- 
tion in  a  report,  of  which  a  copy  is  handed  to  the  officer  of  the 
warship.  If,  in  the  opinion  of  the  commander  of  the  convoy, 
the  facts  shown  in  the  report  justify  the  capture  of  one  or  more 
vessels,  the  protection  of  the  convoy  must  be  withdraAvn  from 
such  vessels. 

Chapter  VIII  —  Resistance  to  Search 

Article  63 
Forcible  resistance  to  the  legitimate  exercise  of  the  right  of 
stoppage,  search,  and  capture,  involves  in  all  cases  the  con- 
demnation of  the  vessel.  The  cargo  is  liable  to  the  same  treat- 
ment as  the  cargo  of  an  enemy  vessel.  Goods  belonging  to  the 
master  or  owner  of  the  vessel  are  treated  as  enemy  goods. 

Chapter  IX  —  Compensation 

Article  64 
If  the  capture  of  a  vessel  or  of  goods,  is  not  upheld  by  the 
prize  court,  or  if  the  prize  is  released  without  any  judgment 
being  given,  the  parties  interested  have  the  right  to  compensa- 
tion, unless  there  were  good  reasons  for  capturing  the  vessel 
or  goods. 

Final  Provisions 

Article  65 
The  provisions  of  the  present  Declaration  must  be  treated 
as  a  whole,  and  cannot  be  separated. 


THE  LAW  OF  NEUTRALITY  349 

Article  66 

The  Signatory  Powers  undertake  to  insure  the  mutual  ob- 
servance of  the  rules  contained  in  the  present  Declaration  in 
any  war  in  which  all  the  belligerents  are  parties  thereto.  They 
will  therefore  issue  the  necessary  instructions  to  their  authorities 
and  to  their  armed  forces,  and  will  take  such  measures  as  may 
be  required  in  order  to  insure  that  it  will  be  applied  by  their 
courts,  and  more  particularly  by  their  prize  courts. 

Article  67 

The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  in  London. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  Protocol 
signed  by  the  Representatives  of  the  Powers  taking  part  therein, 
and  by  His  Britannic  Majesty's  Principal  Secretary  of  State 
for  Foreign  Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by 
means  of  a  written  notification  addressed  to  the  British  Govern- 
ment, and  accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  Protocol  relating  to  the  first 
deposit  of  ratifications,  and  of  the  notifications  mentioned  in 
the  preceding  paragraph  as  well  as  of  the  instruments  of  rati- 
fication which  accompany  them,  shall  be  inunediately  sent  by 
the  British  Government,  through  the  diplomatic  chaimel,  to 
the  Signatory  Powers.  The  said  Government  shall  in  the  cases 
contemplated  in  the  preceding  paragraph,  inform  them  at  the 
same  time  of  the  date  on  which  it  received  the  notification. 

Article  68 

The  present  Declaration  shall  take  effect,  in  the  case  of  the 
Powers  which  were  parties  to  the  first  deposit  of  ratifications, 
sixty  days  after  the  date  of  the  Protocol  recording  such  deposit, 
and,  in  the  case  of  the  Powers  which  shall  ratify  subsequently, 
sixty  days  after  the  notification  of  their  ratification  shall  have 
been  received  by  the  British  Goverrmient. 


350  DOCUMENTS  ON  INTERNATIONAL  LAW 

Article  69 

In  the  event  of  one  of  the  Signatory  Powers  wishing  to  de- 
nounce the  present  Declaration,  such  denunciation  can  only  be 
made  to  take  effect  at  the  end  of  a  period  of  twelve  years, 
beginning  sixty  days  after  the  first  deposit  of  ratifications,  and, 
after  that  time,  at  the  end  of  successive  periods  of  six  years,  of 
which  the  first  will  begin  at  the  end  of  the  period  of  twelve  years. 

Such  denunciation  must  be  notified  in  writing,  at  least  one 
year  in  advance,  to  the  British  Government,  which  shall  inform 
all  the  other  Powers. 

It  will  only  operate  in  respect  of  the  denouncing  Power. 

Article  70 

The  Powers  represented  at  the  London  Naval  Conference 
attach  particular  importance  to  the  general  recognition  of  the 
rules  which  they  have  adopted,  and  therefore  express  the  hope 
that  the  Powers  which  were  not  represented  there  will  accede 
to  the  present  Declaration.  They  request  the  British  Govern- 
ment to  invite  them  to  do  so. 

A  Power  which  desires  to  accede  shall  notify  its  intention  in 
writing  to  the  British  Government,  and  transmit  simultaneously 
the  act  of  accession,  which  will  be  deposited  in  the  archives  of 
the  said  Government. 

The  said  Goverimient  shall  forthwith  transmit  to  all  the 
other  Powers  a  duly  certified  copy  of  the  notification,  together 
with  the  act  of  accession,  and  communicate  the  date  on  which 
such  notification  was  received.  The  accession  takes  effect  sixty 
days  after  such  date. 

In  respect  of  all  matters  concerning  this  Declaration,  ac- 
ceding Powers  shall  be  on  the  same  footing  as  the  Signatory 
Powers. 

Article  71 

The  present  Declaration,  which  bears  the  date  of  the  26th 
February,  1909,  may  be  signed  in  London  up  till  the  30th  June, 
1909,  by  the  Plenipotentiaries  of  the  Powers  represented  at  the 
Naval  Conference. 


THE  LAW  OF  NEUTRALITY  351 

In  faith  whereof  the  Plenipotentiaries  have  signed  the  present 
Declaration,  and  have  thereto  affixed  their  seals. 

Done  in  London,  the  twenty-sixth  day  of  February,  one 
thousand  nine  hundred  and  nine,  in  a  single  original,  which 
shall  remain  deposited  in  the  archives  of  the  British  Govern- 
ment, and  of  which  duly  certified  copies  shall  be  sent  through 
the  diplomatic  channel  to  the  Powers  represented  at  the  Naval 
Conference. 

Note.  —  The  Powers  represented  at  the  Naval  Conference  of  London 
were  Great  Britain,  the  convener  of  the  Conference,  and  Germany,  the 
United  States  of  America,  Austria-Hungary,  Spain,  France,  Italy,  Japan, 
Holland,  and  Russia.  They  all  signed  the  Declaration  of  London,  which 
was  the  fruit  of  the  labours  of  their  representatives,  and  all  looked  forward 
to  its  early  ratification.  But  a  strong  agitation  against  the  Declaration, 
and  especially  that  part  of  it  which  refers  to  Contraband  of  War,  arose  in 
England.  The  matter  became  largely  a  party  question.  The  House 
of  Lords  threw  out  the  Naval  Prize  Bill,  which,  had  it  passed,  would  have 
enabled  the  Government  to  join  with  other  Powers  in  setting  up  the  Inter- 
national Prize  Court  of  Appeal  provided  for  by  the  Hague  Conference  of 
1907.  Without  the  Bill  the  Prize  Court  was  impossible,  and  without  the 
Prize  Court  to  administer  the  rules  contained  in  the  Declaration,  the 
Declaration  itself  was  incomplete  and  possibly  dangerous.  Accordingly 
it  still  awaits  ratification.  But  a  strong  disposition  has  been  shewn  to 
regard  its  provisions  as  International  Law,  though  they  still  lack  the  author- 
ity that  only  the  formal  consent  of  the  nations  can  give.  It  is  to  be  hoped 
that  the  next  Hague  Conference  will  embody  in  Conventions  accepted  by 
all  the  Powers  a  new  and  improved  edition  of  the  Declaration. 


PRINCIPLES  OF  INTERNATIONAL  LAW 

By  T.   J.   LAWRENCE,   M.A.,  LLD. 
OPINIONS    OF    THE   PRESS   ON    THE   FOURTH  EDITION 

Literary  Digest,  New  York. — ■ "  The  present  work  is  recognized  as  the 
best  text-book  in  the  Enghsh  language  on  the  law  of  nations." 

New  York  Times. — "  The  fourth  edition  is,  as  the  author  says,  vir- 
tually a  new  work.  The  book  is  written  in  a  spirit  of  great  fairness. 
It  breathes  an  admirable  spirit  of  international  friendsliip,  and  coming 
down  to  date  as  it  does,  is  an  excellent  and  needed  handbook." 

Law  Quarterly  Review,  London.  —  "The  former  editions  were  deservedly 
well  received,  and  the  present  is  superior  to  its  predecessors.  Statesmen, 
legislators,  students  of  political  science,  and  the  wider  circle  of  thoughtful 
men  whose  opinion  is  essential  for  the  creation  and  enforcement  of  Inter- 
national Law,  \\\\\  find  in  this  volume  an  eminently  clear  and  readable 
outhne  of  a  subject  of  increasing  importance." 

Revue  Geuerale  de  Droit  International  Public,  Paris. —  "Ses  Principles 
of  International  Law  sont  dignes  aussi  des  plus  grands  eloges  :  le  succes 
qu'ils  ont  obtenu  en  on  necessite  quatre  fois  la  refonte  de  1895  a  1910. 
Une  grande  clarte  dans  les  idees,  une  extreme  concision  dans  I'expose,  ime 
forte  originalite  dans  les  doctrines,  telles  sont  les  principales  qualit^s 
de  I'oeuvre  nouvelle  de  Monsieur  Lawrence." 

Saturday  Review,  London. —  "As  an  expository  text-book  of  the  field  of  In- 
ternational Law  in  all  its  branches  there  is  none  which  can  be  read  with  more 
profit  and  pleasure  than  Dr.  Lawrence's  fT^ncipZcso/Znterna^ionai  Laiw.  .  .  . 
On  the  open  questions  the  student  finds  whatever  relates  to  the  theoretical 
treatment  of  the  subject  presented  with  the  lucidity  and  literary  skiU  that 
distinguishes  the  expository  parts,  and  with  that  unfaiUng  desire  to  advance 
International  Law  on  the  fines  of  the  highest  morality  that  animates  all 
Dr.  Lawrence's  writings." 

Economist,  London. —  "  Immediately  on  its  first  appearance  this  work  was 
accepted  as  the  standard  book  for  those  who,  not  being  speciaUsts,  desired  a 
general  survey  of  International  Law,  and  the  new  edition  still  answers  this 
purpose  better  than  other  EngUsh  books  on  the  subject  .  .  .  Among  the 
many  other  points  of  interest  in  this  new  edition  may  be  mentioned  the 
sections  dealing  with  the  four  Pan-American  Congresses  and  the  Central 
American  Court  of  Justice,  a  subject  up  to  now  left  untouched  by  Enghsh 
writers  on  International  law." 

Glasgow  Herald. — "  It  is  still  notable  for  its  admirable  arrangement,  its 
lucidity  and  accuracy  of  statement,  and  its  general  note  of  interest,  which 
is  sadly  missing  in  more  than  on3  recent  text-book.  It  remains  pre-emi- 
nently the  book  for  students,  .  .  .  and  we  have  httle  doubt  that  the 
wide  circulation  of  the  earlier  editions  will  be  repeated." 

Advocate  of  Peace,  Boston,  Mass. —  "Lawrence's  Principles  of  Interna- 
tional Law,  now  brought  down  to  date  so  as  to  include  the  Hague  Con- 
ferences and  the  Naval  Conference  at  London,  will  take  its  place  among 
the  best  works  on  International  Law.  .  .  .  Accurate  in  its  statements  of 
law,  it  is  a  reliable  treatise  [for  the  student;  wTitten  in  a  style  as  clear 
and  forceful  as  Macaulay's,  it  also  interests  the  general  reader." 

Fourth  Edition.     Octavo,     xxi  +  745  pages.     $3.00. 
D.  C.  HEATH  &  CO.,  Boston,  New  York,  Chicago 


This  book  is  DUE  on  the  last  date  stamped  below 


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